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AUSCRIPT AUSTRALASIA PTY LIMITEDABN 72 110 028 825

Level 22, 179 Turbot Street, Brisbane QLD 4000PO Box 13038 George St Post Shop, Brisbane QLD 4003T: 1800 AUSCRIPT (1800 287 274) F: 1300 739 037E: [email protected] W: www.auscript.com.au

TRANSCRIPT OF PROCEEDINGS

O/N H-358923

MR I. HANGER AM QC, Commissioner

ROYAL COMMISSION INTO THEHOME INSULATION PROGRAM

BRISBANE

9.30 AM, THURSDAY, 10 APRIL 2014

Continued from 9.4.14

DAY 19

MR K.N. WILSON QC appears with MR J.R. HORTON as counsel assistingMR T. HOWE QC appears with MR D. O’DONOVAN for the Commonwealth of AustraliaMR R. PERRY QC appears with MR A. ANDERSON for family of Matthew Fuller and Rueben BarnesMR M. WINDSOR QC appears with MR M. HEATH for Peter Stewart and 72 othersMR T. BRADLEY QC appears with MS A.J. COULTHARD for the State of QueenslandMR S. KEIM QC appears for family of Mitchell SweeneyMR I. HARVEY appears for Mike MrdakMR D. BARROW appears with MS C. HUNTER for Jessica Wilson on behalf of family of Marcus WilsonMR W.M. POTTS appears with MR A. HANLON for Murray BarnesMR S. LLOYD SC appears for Robyn KrukMR TREFFERS appears for Margaret CoaldrakeMR S.R. McLEOD appears for Avril KentMR M. SPRY appears for William KimberMR D. DE JERSEY appears for Dennis D’Arcy

Copyright in Transcript is owned by the Commonwealth of Australia. Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval.

10.4.14 P-2575©Commonwealth of Australia

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COMMISSIONER: Yes. You’re still on your former oath. You’re still on your former oath.

<WILLIAM KIMBER, ON FORMER OATH [9.30 am]

<EXAMINATION BY MR WILSON

MR WILSON: Could we bring up, please, AGS.002.027.0341, please. While that’s being brought up, Mr Kimber, do you recall that in the early stages of the design of the program and the formulation of the guidelines – by which I mean March 2009 – that there was a debate about whether particular products achieved technical requirements that could be used under the HIP? There was a debate about R values.

THE WITNESS: R values, yes.

MR WILSON: You recall that?

THE WITNESS: Yes.

MR WILSON: Can we scroll down, please, to the bottom email. Do you recall Mr Fricker providing some input to that debate?

THE WITNESS: I recall Mr Fricker but I don’t recall the specifics of his input.

MR WILSON: I’m going to show you an email. If we can scroll up, please, to the email from Mr Fricker to Ms Riordan. 8 March, and you see that’s the date and time that the email is sent. Can we scroll down then, please. Scroll down. Okay. Just read the final paragraph to yourself.

THE WITNESS: Okay.

MR WILSON: And just if we can flick to the top of the document, you will see that that email was sent on by Ms Riordan to you on 17 March.

THE WITNESS: Yes.

MR WILSON: Do you recall there being a view within the HIP team that no product could be discriminated against under the program?

THE WITNESS: I recall that there was a need to ensure that there was participation. That was a key element of the – of the program, and that there were different product types that people were making representations to us about and that – there were competitive forces between various players in the industry. And also that there were different climatic conditions throughout the country under which – and different

10.4.14 P-2576 W. KIMBER XN©Commonwealth of Australia MR WILSON

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construction types under which particular products may or may not have been better than others.

MR WILSON: And there was a view within government – that is, within the HIP team – that no discrimination should be made between products. That is, everyone should be allowed to participate.

THE WITNESS: I recall that being a principle that was discussed and – and something that was in our minds as we were designing the guidelines, yes.

MR WILSON: And having read that last paragraph in Mr Fricker’s email, do you recall that the only way that rollout metal foil sheeting could be permitted to be used under the program was if a total R value for the whole roof space was used rather than the R value of the product itself?

THE WITNESS: I remember that there were technical details to do with the R value that we were attempting to gather information and advice from various sources on, and that Mr Fricker was one of those people who was providing information to us on that. And I recall that myself not being an expert in insulation, that I was concerned that we needed to ensure that we were getting independent input and advice, and that was one of the reasons that I wanted to bring together those technical experts on 3 April, at that meeting at the National Library.

MR WILSON: Do you recall whether you sourced Mr Fricker for advice or whether his name was given to you by an industry association?

THE WITNESS: I don’t recall exactly how Mr Fricker came to be involved originally but I do recall that we were aware that he had had a previous engagement or involvement with industry, and I was concerned that there may have been a conflict of industry.

MR WILSON: And previous involvement with the foil association.

THE WITNESS: I can’t recall what his involvement was but I recall being concerned that he may have a conflict of interest.

MR WILSON: And what did you do about that?

THE WITNESS: We – we sought to get information from a variety of sources and we sought to understand the background and the situation of the people that were providing that.

MR WILSON: Could I take you, then, to AGS.002.027.0439 please. The email from you it seems in response to Mr Fricker on 18 March, and this is where you are effectively inviting him to the workshop which was ultimately held on 3 April. Do you see that? Just scroll down a little bit, please.


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THE WITNESS: Okay.

MR WILSON: Do you recall the Department or the team also taking advice at that early stage from B-r-a-n-z?

THE WITNESS: I recall BRANZ was involved, yes.

MR WILSON: What was BRANZ’s area of speciality or expertise?

THE WITNESS: I recall that they were a body involved in the testing of insulation materials.

MR WILSON: Yes. So they could provide some independent advice about R values of materials themselves.

THE WITNESS: I – I don’t know about how independent they were but I recall that they were an organisation we were interested in in the context of gathering more information.

MR WILSON: And do you see in the very first paragraph, second line, you say:

You will appreciate the capacity constraints on our team during this current very fast-paced period.

What was happening at that time – this is on 18 March 2009?

THE WITNESS: On 18 March, around that time, the Department had just started to grapple with the issues of what was being asked by the government and I found out about the program via the media release from the Treasurer, Wayne Swan, on 3 February 2009 and at that time, it was unknown to me that the department would be implementing this program and I was asked to join the program. So not having had any previous background in the implementation of such program or background in roof insulation, I was starting from scratch in terms of my knowledge and contacts in the industry and it was a stressful and difficult period because the government had announced that the program had already commenced and householders and various people from the community were even phoning the department switchboard and asking how they could get access and how they could receive the – how they could receive the – the rebate.

But the department didn’t have any opportunity to plan or go through what would be the normal process to design through – through an NPP process, a new policy proposal process and the costings under which – normally, these types of programs would be established. Rather, it was – it was announced and then we had to figure out how we would implement it and just – and – and meet the government’s objectives. So we were at the same time attempting to deliver the program and design it.


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MR WILSON: Did Ms Riordan tell you that she had been involved in the NPP process on the Australia Day weekend?

THE WITNESS: I’m aware - - -

MR O’DONOVAN: Sorry, I’m not sure that that has come out in the evidence and, in fact, I think we’ve been scrupulous in our attempts to avoid having the process that Ms Riordan went through described in those terms. Certainly she prepared costings which were provided - - -

COMMISSIONER: Yes. I don’t know if it was described in the terms of NPP.

MR O’DONOVAN: Yes.

COMMISSIONER: Because that’s a Cabinet privilege word that will upset your leader.

MR O’DONOVAN: Yes, that’s right. So that’s my only concern. I think there’s no doubt that Ms Riordan was involved in preparing costings which were provided to the Department of Prime Minister and Cabinet, and there’s certainly no issue with counsel assisting exploring that aspect of it.

COMMISSIONER: Yes. This is a bit of a difficult issue, in a way, when you think about it because I accept that the word “NPP” has been avoided. That may lead to consequences down the track.

MR O’DONOVAN: Look, I appreciate we’re treading a fine line here.

COMMISSIONER: Mister, can we delete the word NPP from that program?

MR WILSON: Forget I ever said the word NPP or the letters. Were you aware that Ms Riordan had been involved in doing costing work for the HIP program at an earlier time?

THE WITNESS: I became aware of that, yes.

MR WILSON: When did you become aware of that?

THE WITNESS: Well, from my own experience, I learnt – I first learnt about the program and the fact that other officers in – in the department, including Ms Riordan, had been involved in it in a very compressed timeframe. On 3 February 2009, after I was reading the press release at my desk, subsequently being – or at that time working in another area of the department, and then received a phone call from my first assistant secretary asking me if I could come to his office and when I went to the office, Ms Riordan was there and that was when I was informed that the program existed and that I became aware that Ms Riordan had been involved previously.


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MR WILSON: I just wanted to ascertain the state of your knowledge. Were you aware that Ms Wiley-Smith had also been involved in earlier work?

THE WITNESS: Yes.

MR WILSON: And notwithstanding that knowledge, do you adhere to the evidence that you just gave about the inability of the department to let that properly prepare for this program?

THE WITNESS: I do, because my understanding from – from talking with – with colleagues at the time, including Mary and Beth, is that they were not – there wasn’t a period where the department went through what would, in my experience, be considered a normal policy development process where you gather information and – and conduct analysis and consultation so that you can design a program that – that would meet the government’s objectives. In – my recollection at the time was that officers were frustrated because it had been so compressed and that there hadn’t been an opportunity necessarily to go through that normal process.

MR WILSON: So you were made aware, I take it, very early on, if not on 3 February, that the program proper was to roll out on 1 July?

THE WITNESS: Yes.

MR WILSON: And that there was an interim program in place up till 1 July?

THE WITNESS: Yes, that was in the press release. Yes.

MR WILSON: Was it ever explained to you why 1 July was the magic date?

THE WITNESS: I don’t recall why 1 July was chosen, but I recall a sense of urgency from the government and from the Department of Prime Minister and Cabinet around implementing the program quickly so that we meet the economic stimulus objectives.

MR WILSON: And what interaction, if any, did you have with the Department of Prime Minister and Cabinet?

THE WITNESS: Can you be more specific?

MR WILSON: Yes. You said there was a sense of urgency and you mentioned officers – sorry – you mentioned the Department of Prime Minister and Cabinet - - -

THE WITNESS: Yes.

MR WILSON: - - - having that sense of urgency. I’m just asking what interaction you had with officers of the Department of Prime Minister and Cabinet that conveyed to you that sense of urgency?


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THE WITNESS: Well, my interactions included working with members of the Cabinet Implementation Unit by email and I recall that they were requesting reports from us from quite early in the process or pretty much as soon as the program had been announced on 3 February, and the – the particular matrix that they were interested in were the number of homes that had been insulated and the amount of money that had been spent.

MR WILSON: And where you’re referring there to the Cabinet Implementation Unit, did you later have interaction with officers from the Office of the Coordinator-General?

THE WITNESS: I – I think yes. But my recollection at the time is hazy as to exactly who was working for the CIU and who was working for the OCG.

MR WILSON: As matters – as time passed, was your involvement more with officers from the Office of the Coordinator-General, Mr Hoffman, Mr Wilson?

THE WITNESS: Mr Hoffman - - -

MR WILSON: Mr Cox.

THE WITNESS: - - - was heavily involved and was a – an active member of the project control group. Mr Downsborough, Craig Downsborough, was involved in the reporting that I mentioned around the amount of money spent and the houses insulated. Mr Wilson, I personally had less interaction with. And who was the other person?

MR WILSON: Mr Simon Cox.

THE WITNESS: I recall having some interactions with him as well.

MR WILSON: And what was the nature of the interactions with those people? Was it simply reporting or was it more than that?

THE WITNESS: Well, Mr Hoffman was a member of the project control group so he was one of the executives that were involved in making decisions on the program and I remember him being active in that space. The other officers were – would come to meetings as well but they were more junior to Mr Hoffman.

MR WILSON: And I appreciate this is a general question, but can you assist the Commission with your impression or understanding of the dynamic of the involvement of the Officer of the Coordinator-General, that is, were they sitting there listening and taking information, were they taking an active involvement in discussion, were they leading discussions – you see what I mean?

THE WITNESS: I recall the PCG meetings that – that Mr Hoffman was active and was a leading participant in the discussions.


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MR WILSON: You’re aware throughout, though, that ultimately the decision-making was for the minister of your department?

THE WITNESS: I recall that our minister was – had policy responsibility for the program but I also recall that Senator Arbib was involved.

MR WILSON: And how do you recall that? That is, what involvement did Senator Arbib have?

THE WITNESS: That – that Senator Arbib was in charge of the stimulus package and implementing it and that Minister Garrett was in charge of the Home Insulation Program specifically.

MR WILSON: And one was part of the other?

THE WITNESS: Yes.

MR WILSON: But ultimately, any decision under the HIP was made by Minister Garrett.

THE WITNESS: I don’t know what decisions were made by Senator Arbib and Senator Garrett and – Minister Garrett and what their conversations or interactions were.

MR WILSON: I was just picking up on an answer you gave before that decisions were made at the project control group. THE WITNESS: Yes.

MR WILSON: That is internal decisions but those decisions would still have to be ratified or approved at a higher level.

THE WITNESS: Yes. That’s right.

MR WILSON: And you don’t know whether that that Minister Garrett or Minister Arbib.

THE WITNESS: Well, I know that – no, I don’t. I know that briefings were provided to Minister Garrett and I would presume that some briefings would have been provided to Senator Arbib by the PM&C officers who were working on the program.

MR WILSON: Thank you. Can I go – bring up please AGS.002.029.0929. Do you remember yesterday I showed you the minutes of the technical committee meeting on 3 April 2009? It was in a different form to this. It was the actual minutes of the meeting. Do you recall that?


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THE WITNESS: Yes.

MR WILSON: This is a document – if you just scroll down to the bottom – keep going – keep going – okay. Now can we go back up. I’m just seeing who that first email, whether there was a signatory to it. Keep going. Keep going. Okay. So Ms Spence is writing to various people. You will see there there’s a gentlemen from BRANZ - - -

THE WITNESS: Yes.

MR WILSON: - - - is invited to the meeting as well as Mr Fricker and others.

THE WITNESS: Yes.

MR WILSON: Okay. Scroll up. And then you send the agenda around to those people; do you see that?

THE WITNESS: Yes.

MR WILSON: Okay. Scroll up. Now, I just can’t pick up who is the author of this email. Just go right up to the top and see if it’s there. It’s a document to Me Keefe copied to those other two ladies. Do you recall whether you were the author of this document? Just scroll down so Mr Kimber can scroll through it.

THE WITNESS: I don’t - - -

MR WILSON: That is doing a summary for Mr Keefe of what had happened at the meeting.

THE WITNESS: That’s right. I recall the meeting and I don’t specifically recall writing this document but it looks like something that I may have written and it’s roughly consistent with the more comprehensive summary which, in the top of the email, it indicates sort of a more fulsome summary would be provided next week because this is being sent fairly late on the Friday evening and it appears that I may have been sending this to my branch head, Mr Keefe, at the time as – so that he would have, while it was fresh in my mind, information about what had happened during that day.

MR WILSON: If we can go back up to the top you will see that it’s sent, in fact, on 3 April at 25 past 7.

THE WITNESS: That’s right. Yes.

MR WILSON: Okay. And scroll down to the TAG members. Who are they? Technical advisory group, perhaps?



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MR WILSON: Now, what was Mr Marker’s expertise. What is pit and cherry, do you remember?

THE WITNESS: I recall that Mr Marker had assisted the department previously in the context of a manual that was produced for households on measures they could take to improve the energy efficiency in their home and that he was someone that we identified as having potentially expertise and a level of independence.

MR WILSON: And what about the reasons for inviting Mr Ash from the building codes board.

THE WITNESS: I recall getting in touch with the Department of Industry and the Australian Building Codes Board and asking them for advice and information at the – as part of this knowledge gathering exercise and that Mr Ash responded.

MR WILSON: Okay. If we just scroll up a little bit, please. Sorry, down a little bit to those safety issues, yes. And that was the summary of the author of this document of what had been discussed at the meeting on 3 April.

THE WITNESS: Yes.

MR WILSON: Now, you see the second dot point speaks for itself, but do you see the third dot point?

THE WITNESS: Yes.

MR WILSON: Was it the consensus of the meeting or the predominant view that each of those matters had to be addressed in training? That is, working at heights, particular dangers in old buildings, dealing with hazardous materials.

THE WITNESS: I recall that there was a general convergence around these safety issues including those issues you mentioned among the people at the meeting. I don’t recall whether there was a discussion of how you would specifically address those in training.

MR WILSON: Well, it refers expressly to a risk plan. That is, these things have to be identified as risks.

THE WITNESS: Yes.

MR WILSON: And then there needs to be a way of dealing with that risk or treating that risk.

THE WITNESS: Yes.

MR WILSON: And one way – we went through some of these yesterday, one way of doing that is training.


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THE WITNESS: Yes.

MR WILSON: Do you recall whether there was any discussion that these sort of risks could be ameliorated by training?

THE WITNESS: I don’t recall specific discussions, no. MR WILSON: Do you recall at that meeting whether there were any particular discussions to whether certain types of product present particular risks or different risks to other types of product?

THE WITNESS: Yes. And one of the dot points here mentions the fact that some of the products, for example, the cellulose, if it doesn’t have fire retardant or adhesive sealing to prevent movement, that that could be an issue.

MR WILSON: So there was some descending to discussion of particular products and particular risks that they presented.

THE WITNESS: Yes.

MR WILSON: Do you recall whether there was any discussion about the use of rollout reflective foil and the manner in which that could be used?

THE WITNESS: I don’t recall specific discussion on the foil, no. MR WILSON: Thank you. Could I then take you back to your statement please, to paragraph 25 and you’ve referred to the, my term, training material produced by the Skills Council.

THE WITNESS: Yes. MR WILSON: Do you recall whether at that stage any work had been commenced or commissioned for the production of what ultimately became the pocket book; you know what I’m talking about there? The industry pocket book.

THE WITNESS: Yes.

MR WILSON: Do you recall whether that was also in the scope of work at that stage or was it something that happened subsequently?

THE WITNESS: Sorry. Do you mean in the scope of work for this group, the technical advisory group or the training group?

MR WILSON: Training group. That is, you’re saying CPSISC has produced these various things and you attach them.

THE WITNESS: Yes.


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MR WILSON: Do you know whether work had started at that stage on the pocketbook?

THE WITNESS: I don’t recall when the work started on the pocketbook.

MR WILSON: Were you involved at all in the discussions leading up to the production of the pocketbook?

THE WITNESS: Yes.

MR WILSON: And who were you involved in those discussions with?

THE WITNESS: The CPSISC and members of the HIP team. MR WILSON: Now, you’re aware that a pocketbook was initially produced in draft form and then distributed to various people for comment?

THE WITNESS: Yes.

MR WILSON: Now, can I bring up CPS.002.001.1186, please. And you will see – if we just scroll down a little bit – you will see that that – a little bit further – draft validation. So this is the draft pocketbook.

THE WITNESS: Okay.

MR WILSON: And can I take you to page 35 of that document, please. And do you recall whether this document was produced before or after 1 July 2009? That is, is your memory that before the program rolled out, there’s at least a draft pocketbook in existence?

THE WITNESS: I think there might have been but I would need to check the date on when this was provided.

MR WILSON: Go back to the second page of the document. Just keep going down. I want to see a date. See May?

THE WITNESS: Yes.

MR WILSON: It seems to have – at least in draft form – been in existence before 1 July.


MR WILSON: Can we go back to page 35, please. And what role did you have in the contents or the matters that needed to be covered by this pocketbook?


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THE WITNESS: At this stage – or once the CPSIC got involved it was really a sense of the Department seeking their advice and, myself not being an electrical safety expert, my role was not to populate this content.

MR WILSON: Did you read it when it – did a copy come to you for consideration?

THE WITNESS: Yes.

MR WILSON: Did you read it?

THE WITNESS: Yes.

MR WILSON: If you hadn’t read that page, were you aware at the time that there were electrical safety issues for people getting up into roof spaces?

THE WITNESS: Yes.

MR WILSON: And one of those risks was electrocution?

THE WITNESS: Yes.

MR WILSON: And when you read that page, when the draft came in, did you think that it adequately covered or dealt with that risk?

[10.00 am]THE WITNESS: I think it – it does cover the risk and what I was concerned with is that even – even if installers – even if we had requirements in our program guidelines that involved the Australian standard and expert safety advice, that there was the possibility that those things wouldn’t be complied or there would be accidents still.

MR WILSON: Did you know, as at May 2009, that one of the products that was going to be permitted to be used under the scheme was rollout metal foil?

THE WITNESS: Sorry, can you repeat - - -

MR WILSON: Did you know that one of the products that was going to be allowed under the scheme, and is your knowledge as at May 2009 – one of the products that was going to be allowed under the scheme was rollout metal foil?

THE WITNESS: Yes.

MR WILSON: And did you have any knowledge of how that was actually used in a roof space? That is, how it was fitted?

THE WITNESS: My knowledge was faired limited at that stage.

MR WILSON: Did you know, for example, whether it was just rolled out and left or whether it was affixed in some way to the ceiling?


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THE WITNESS: I became aware that there were a various of ways that you could do it, and that some of those methods would – would be required to be used depending on the construction of the home and the outcome that you were likely to get in terms of where you placed the material.

MR WILSON: And were you aware that one of the ways of using that material was to roll it out and affix it to the ceiling joists?

THE WITNESS: I can’t recall specifically when or if I was aware of the different methods, only that I was aware that there were different ways of doing it.

MR WILSON: Do you recall whether, before this book was published, you took any advice from industry or from any of those experts that we’ve seen the names of as to whether that was a safe system of installing that type of insulation?

MR O’DONOVAN: I’m sorry, I’m not sure that’s a fair question. The witness said that he was aware that there were different ways but wasn’t sure that he was aware of a particular way, and he seems to have been asked now whether he took advice on the particular way.

COMMISSIONER: All right. Can you reframe the question?

MR WILSON: Did you take any expert advice on the ways in which rollout metal foil could be installed safely?

THE WITNESS: I don’t recall specific advice on that, no.

MR WILSON: Do you recall that the draft pocketbook was circulated to industry for comment?

THE WITNESS: I don’t recall that but I imagine it probably was.

MR WILSON: Can I bring up, please, AGS.002.010.1370 please. Now, can we just scroll down to the next email. Let’s try CPS.002.001.1433, please. Now, did you know or were you aware of an organisation known as Fletcher Insulation?

THE WITNESS: Yes.

MR WILSON: It was the largest insulation business in Australia?

THE WITNESS: I recall it being one of the largest industry players, yes.

MR WILSON: If you accept that the letters “FI” are Fletcher Insulation – you see in the email that’s on the screen? This is an email from someone in Fletcher Insulation to his colleagues and a Mr D’Arcy commenting about the draft pocketbook. Do you see that?


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THE WITNESS: Yes.

MR WILSON: And do you see the first line?

THE WITNESS: Yes.

MR WILSON: And the second line.

THE WITNESS: Yes.

MR WILSON: Then if we go to the top of that page, you will see that that’s sent on to Kristen Sydney who is one of the ladies that you spoke about yesterday.

THE WITNESS: Yes.

MR WILSON: Could I then take you to CPS.002.001.1546, please. And you will see that this Ms Kristen Sydney sends it on to Jane Spence who is in the HIP team.

THE WITNESS: Yes.

MR WILSON: Did you become aware of that feedback from Fletcher Insulation?

THE WITNESS: I did not, no.

MR WILSON: Had you become aware of it, do you think it was an important piece of information?

MR O’DONOVAN: Sorry, I may have misunderstood the sequence here but is it suggested that Jane Spence receive the positive information which was sent to Kristen Sydney? Because my understanding is that Kristen Sydney is in CPSISC and that she made some changes to the feedback before she supplied it to the Commonwealth. Now, I – I may have misunderstood that but I just wanted counsel assisting to be clear about what he is suggesting to the witness was forwarded to Jane Spence because he has taken the witness to two different documents - - -

COMMISSIONER: All right.

MR O’DONOVAN: - - - not a single email chain.

COMMISSIONER: Is that - - -

MR WILSON: Isn’t it sent to Jane Spence? But my question was had you become of this information, did you regard it as an important part of information. There’s no objection to that question.

COMMISSIONER: No, is there?


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MR O'DONOVAN: I mean, it was just – there’s certainly no objection to the question and the witness can answer - - -

MR WILSON: Well, then, why interrupt?

COMMISSIONER: All right. Okay.

MR O'DONOVAN: But no – the – I just wanted the – did not – if the witness had an impression that was the same as mine and that’s not the correct impression, I just think - - -

COMMISSIONER: It was that that email was forwarded onto - - -

MR O'DONOVAN: Jane Spence who - - -

COMMISSIONER: - - - somebody in HIP.

MR O'DONOVAN: - - - worked closely with Mr Kimber.

COMMISSIONER: Yes.

MR O'DONOVAN: Whereas it’s quite a different proposition if that email never – never went any further than Kristen Sydney. So perhaps if you just allow the question and - - -

COMMISSIONER: Yes, I think so because it’s still an admissible question. What you’ve drawn to our attention, I’m sure we will be taking that into account.

MR O'DONOVAN: Thank you, Commissioner.

MR WILSON: Am I allowed to go on, now?

COMMISSIONER: Yes. Ask the question again, please.

MR WILSON: Had you become aware of that information in the email from Fletcher Insulation – Mr Chick – would you have regarded that as an important piece of information?

THE WITNESS: I think I probably would have, yes.

MR WILSON: That one of the larger, if not the largest, industry player thought that stapling through metal foil was an unacceptable risk.

THE WITNESS: I think that would have been important information, yes.

MR WILSON: But you don’t recall that being drawn to your attention?


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THE WITNESS: I don’t recall that specific email, no.

MR WILSON: Do you recall any amendments to the pocketbook being made which may pick up that sort of information?

THE WITNESS: No, I don’t.

MR WILSON: Can I take you to QIC.005.001.0470 please. Now, Mr Kimber, we understand that this is the first actual edition of the pocketbook – not in draft form, but the first edition of the pocketbook, and if we go to the second page to the bottom we will see that it was updated in July 2009. Do you see that?

THE WITNESS: Okay. Yes.

MR WILSON: And can I take you to page 35 of that document. And would this version of the document – of the pocketbook have also been sent to you as the draft was?

THE WITNESS: Yes. I recall seeing this document.

MR WILSON: And do you see in the – on the screen in front of you now the red writing?

THE WITNESS: Yes.

MR WILSON: That was added from the draft. If one compares the draft to this, that’s additional information.

THE WITNESS: Okay. Well, I wasn’t privy to drafting this document and nor did I edit or see various versions of the draft or can recall that if I did, but if that’s what you’re suggesting then – if you have documents to suggest that then I’m willing to accept that that’s the case.

MR WILSON: As a matter of fact, that is an additional set of words.

THE WITNESS: Okay.

MR WILSON: And if we go down just to – just scroll down that page – see the last paragraph? If you suspect the wiring.

THE WITNESS: Yes.

MR WILSON: That has been added as well.

THE WITNESS: Well, as I say, I don’t know what was added or what - - -

MR WILSON: I’m just telling you that it has been added as well, okay.


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THE WITNESS: Okay. MR WILSON: Now, when you read this – just scroll back up to that red writing – when you read this, did you ask anyone or make inquiries as to why that warning had been inserted?

THE WITNESS: I remember being concerned about the issue of installer safety during the course of the design of the program. I remember making those concerns known in a variety of ways. I don’t recall specifically reacting to this page in this document.

MR WILSON: In terms of the program, if this document is produced in July 2009, which is at the start of the main phase of the HIP, and that warning appears in a pocketbook, did you give any consideration to making inquiries as to what sort of products being used under the program would involve stapling RFLs to ceiling joists?

THE WITNESS: I recall questions being raised at the time but I don’t recall whether I specifically reacted to this document at the time.

MR WILSON: Do you consider now that it was appropriate to allow RFLs to be used under the HIP if stapling them to ceiling joists posed a high risk of electrocution?

THE WITNESS: I’m not an electrical safety expert or an insulation installation expert and so I don’t have a view about particular practices. We were taking advice from looking to gather information from experts and that’s why we consulted with the Department of Education and the Construction Property Skills Council.

MR WILSON: Well, do you consider that Fletcher Insulation was a source of advice?

THE WITNESS: Yes.

MR WILSON: It may not be truly independent but it was certainly and experienced player.

THE WITNESS: Yes.

MR WILSON: And it had given advice that this was an unacceptable risk.

MR O’DONOVAN: When counsel – counsel must have a view about whether that advice was given to the Commonwealth or that advice was given only to CPSISC.

MR WILSON: I said it was given to Ms Spence.

COMMISSIONER: Sorry. Make your objection.


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MR O’DONOVAN: Well, perhaps, if that’s the factual position, all I’m asking is that when he asks the witness the question, that he states who was given the advice.

COMMISSIONER: Mr Wilson.

MR WILSON: Do I need to say it again?

COMMISSIONER: Say it again. Ask the question again.

MR WILSON: ..... gave the information to Ms Spence. That’s the premise of my question, okay. Just assume that that happened.

THE WITNESS: Okay.

MR WILSON: Now, my question was Fletcher Insulation had given a valuable piece of advice that this was an unacceptable risk. THE WITNESS: Okay.

MR WILSON: The book was changed to put that warning in.

THE WITNESS: Okay.

MR WILSON: Do you know why the practice was allowed to continue?

THE WITNESS: I don’t know why the practice was allowed to continue. I know that the program guidelines were designed in such a way as to rely on existing standards and requirements for insulation, the Australian standards, for product and installation. And I was concerned that those – that there may have been weaknesses even in the Australian standard, not to mention the additional risk that people wouldn’t follow the standard. So I felt that this, among other things, was a concern for the program.

MR WILSON: And did you take any action to provide a report to your superiors or raise it at a PCG meeting? Anything of that sort?

THE WITNESS: Raise what?

MR WILSON: That there was this practice taking place of stapling RFLs to ceiling joists - - -

THE WITNESS: Well - - -

MR WILSON: - - - and that it was dangerous.

THE WITNESS: - - - I didn’t take any action in relation to this particular document because this document was available to the PCG and to everyone else working on the


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program including the industry. And I considered at the time that the issues of safety that I had been feeding those up to my superiors and to the PCG and that my role was to gather the information and to feed it and to design the program guidelines in a way that met the government’s objectives and controlled risks in the best way we could. But I was concerned that that wasn’t happening.

MR WILSON: Is it your evidence that the booklet was available to the project control group members?

THE WITNESS: I don’t know for sure when and how it was provided to them but I would be very surprised if it wasn’t.

MR WILSON: Do you recall there being any discussion at program control group meetings about the booklet and in particular about the page that I’m showing you?


MR WILSON: Do you recall there being any discussion in HIP team meetings about the booklet?

THE WITNESS: Yes.

MR WILSON: And about the page that I’ve shown you.

THE WITNESS: I don’t recall specific discussions of this page in HIP team meetings but I recall discussions that were ongoing throughout the period of 2009 around installer safety and the concerns that we had.

MR WILSON: I’m talking about a particular aspect of installer safety, that is, the risk of electrocution.

THE WITNESS: Yes.

MR WILSON: Do you recall there being discussions about that?

THE WITNESS: Yes.

MR WILSON: Do you recall there being any discussions about how that risk might be addressed?

THE WITNESS: No. And that made me concerned because the way that the business model that had been selected and the sort of retrospective compliance nature of the program meant that we were relying on installers having the capability and the skills and complying with standards that existed, but we didn’t have any way to know that they would do that or that they were capable of doing that.


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MR WILSON: Did the technical group – remember I showed you those minutes of the 3 April meeting?

THE WITNESS: Yes.

MR WILSON: And then the summary of the meeting.

THE WITNESS: Yes.

MR WILSON: Did those – did that group continue to meet?

THE WITNESS: There may have been further meetings. I can’t recall when.

MR WILSON: Do you recall whether there were any meetings of that group after 1 July?

THE WITNESS: No, I don’t recall that.

MR WILSON: Do you recall whether there were any meetings of that group which discussed the subject matter of page 35 of the pocketbook?

THE WITNESS: I – I don’t recall those discussions, no.

MR WILSON: Do you recall whether any expert advice was sought about how the risk of electrocution could be, if not eliminated, then minimised?

THE WITNESS: I recall that in the context of the training development, that the questions of – of electrical safety were – did feature and I recall discussions with state bodies, including their Office of Electrical Safety in Queensland, and I recall being frustrated that these risks existed and that there was no way to control them given that the – the business model that had been selected and the requirement for rapid implementation.

MR WILSON: Now, could I take you to a couple of other documents, please. Could I take you to CPS.002.001.0148, please. Now, again, this works in reverse order so if we could go to the email first at – from Katrina Wolfe to Jackie Bishop. Did you become aware as part of your work under the program that Ms Wolfe was associated with the Victorian State scheme?

THE WITNESS: I don’t recall Ms Wolfe, no.

MR WILSON: Do you recall inquiries being made of the states that had schemes for their training material?

THE WITNESS: I recall that we sought advice from DEWHA and from CPSIC on that issue.


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MR WILSON: And you will see there that – do you know who Ms Bishop was?


MR WILSON: That Ms Wolfe is sending to her an outline of the insulation course that the Victorians had. Do you see that?

THE WITNESS: Okay.

MR WILSON: Now, if we scroll up to the next email, she sends it on to somebody called Shawn Kelly. Do you know who that is?

THE WITNESS: I don’t know Shawn Kelly, no.

MR WILSON: Okay. And if we scroll up to the next one. Ms Bishop sends it on to Mr Keefe. Do you see that?

THE WITNESS: Yes.

MR WILSON: Now, if you scroll up to the next one and then if you can scroll up to the next one. So it seems that eventually those materials came to you?

THE WITNESS: Yes.

MR WILSON: And what did you do with them?

THE WITNESS: It looks like I’m writing back to the CPSIC to make sure that they had received this information as part of their work.

MR WILSON: So did you consider the materials and form a view as to whether they were perhaps of assistance or appropriate to what was being proposed for the HIP?

THE WITNESS: I did not because we were asking CPSIC to help us with that.

MR WILSON: And then if I could take you to CPS.002.001.0027, please. And, again, if we could just go down towards the foot of the first page. Just up a little. A little bit more. That’s it. You will see that on 24 April, Ms Sydney from CPSISC sends through to you her initial comments. And if we scroll down to the next page, putting together a list of minimum standards for training. Do you see that?

THE WITNESS: Yes.

MR WILSON: And we looked at these yesterday.

THE WITNESS: Yes.


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MR WILSON: And then if we go to the top of that document. Top of the document. You’re saying back to Ms Sydney:

This advice all makes sense.

THE WITNESS: Okay.

MR WILSON: Now, to me, that reads as if you’re agreeing that they have a minimum competency requirements although you said yesterday you still had some concerns about whether they were toughened up.

THE WITNESS: Well, we were still drafting them. So I think what I’m saying there is I understand the advice that she’s providing but I’m not making any comment about the robustness of this minimum standards.

MR WILSON: And then if I could take you to AGS.002.010.1449, please.

COURT OFFICER: Mr Wilson, can you repeat the last four digits, please.

MR WILSON: 1449. And just to finish off there because in your statement, as I’ve said, you set out the final product but this is her coming back on the – just scroll up a bit – 7 may. Do you see that? Writing to you and providing some commentary on the New South Wales program. Remember I asked you yesterday whether you made any inquiries of New South Wales?

THE WITNESS: Yes.

MR WILSON: And it seems that somebody from the Skills Council have in fact looked at their requirements and are reporting back to you about them.

THE WITNESS: Okay.

MR WILSON: Could I take you then to a later period of time. Could I take you to AGS.002.017.2244, please. Now, just scroll down a little bit and I think there’s another email on the same page. Yes, that one with 22 October. Next one down. Do you recall in or about 22 October there had been arranged a meeting in Canberra where some representatives from New Zealand were going to attend?

THE WITNESS: I don’t recall that, no.

MR WILSON: Do you know of a gentleman named Gleb Speranski?

THE WITNESS: I don’t recall him, no.

MR WILSON: Just scroll down. Sasha Kaminski. She worked as part of the HIP team?


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THE WITNESS: Yes.

MR WILSON: And what was her area, if you like?

THE WITNESS: Well, she worked on issues of the technical, sort of, product standards - - -

MR WILSON: So the same area as you?

THE WITNESS: Similar area to me, yes.

MR WILSON: Do you recall her raising with you that she was going to make some inquiries of New Zealand to find out what had happened there?

THE WITNESS: I - - -

MR WILSON: Remember yesterday I took you to that comment in the 18 February 2009 industry meeting about – that was attributed to Mr Ruz - - -

THE WITNESS: Yes.

MR WILSON: - - - in the email?

THE WITNESS: Yes.

MR WILSON: Now, do you recall 22 October is after the first fatality - - -

THE WITNESS: Yes.

MR WILSON: - - - where somebody appears to have electrocuted themselves in exactly the way that Mr Ruz was talking about in February?

THE WITNESS: Yes.

MR WILSON: Okay. Do you recall Ms Kaminski, either herself deciding to contact New Zealand to find out some more about that or her being tasked to do that?

THE WITNESS: I don’t recall whether Sasha was tasked or whether she did that by herself, but I recall that this issue of the New Zealand example coming up at the – towards the end of – of 2009.

MR WILSON: Well after the first fatality on 14 October?

THE WITNESS: Correct.

MR WILSON: Now, do you recall at the time – this is a week and a day after the fatality and information is given by New Zealand about their experience – whether


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there was any movement in the HIP team to do something urgently to address this situation in Australia?

THE WITNESS: I recall the – the death, the first death, and that – that issue was treated very seriously, and that questions – more questions than had been originally been asked, that some of those original questions came back again and that the question of banning particular products or banning the use of metal staples became – that it was back on the agenda.

MR WILSON: My question was really addressed to more the urgency with which it was dealt with. We know as a fact that there was a meeting on 27 October at which Minister Garrett attended, where industry members discussed this. But we’ve got a death on 14 October, we know as a fact that in the pocketbook it says that this practice of stapling foil to the joists carries a high risk of electrocution - - -

THE WITNESS: Yes.

MR WILSON: - - - somebody has actually been electrocuted.

THE WITNESS: Yes.

MR WILSON: I’m just trying to get a sense of why – you tell me if they did do this – but why the Department doesn’t seem to have acted immediately to investigate that the practice is occurring and to stop it.

[10.30 am]THE WITNESS: I recall a lot of discussions around this time including with the executive in our Department and with the Queensland Office of Electrical Safety and other state regulators. And I recall a lot of discussions around what alternatives or what measures could be taken. And I recall being frustrated that – that these issues had been known in the program and that the risks that we were concerned about had – had come to fruition.

MR WILSON: That still doesn’t answer my question. You partly answered it by saying you were frustrated.

THE WITNESS: Yes.

MR WILSON: But there’s been a death.

THE WITNESS: Yes.

MR WILSON: There’s a cause of the death known.

THE WITNESS: Yes.

MR WILSON: There’s been a warning about the death, at least in the pocketbook.


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THE WITNESS: Yes.

MR WILSON: Why not immediately say, “Until we find out whether this is safe to continue, stop paying people to install metal foil”, send out an installer advisory, just do something urgently? I’m just trying to get a handle on why that wasn’t done.

THE WITNESS: I don’t – I can’t say why it wasn’t done, only that I made representations to that effect including before the death happened and that – that the practice continued.

MR WILSON: You said you made representations to that effect before the death happened.

THE WITNESS: Yes.

MR WILSON: “To that effect”, you mean the sort of things I was putting to you?

THE WITNESS: I made representations that the risk in the program was such that – the business model selected and the speed of implementation meant that the risk in the program could not be controlled and that we should have a review or at least a timeout.

MR WILSON: Do you recall when you did that?

THE WITNESS: I recall making those representations during the middle part of 2009 as well as making representations in the early part of 2009 about the possibility that those – that the path that we were going down could – could lead to – to these risks.

MR WILSON: When we’re talking about “these risks” – I just want to be clear – are we talking about the risk of electrocution? Maybe as part of a number of risks but specifically including the risk of electrocution.

THE WITNESS: Well, the risks that were outlined in those bullets in the 3 April meeting - - -

MR WILSON: But when you made those representations, who did you make them to?

THE WITNESS: I made them internally to my superiors.

MR WILSON: Who?

THE WITNESS: Well, the people who were in my chain of command in the Department.


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MR WILSON: Yes, I’m just wanting you to put names to these people. Is that Mr Keefe?

THE WITNESS: Yes.

MR WILSON: Mr Hughes?

THE WITNESS: Yes.

MR WILSON: Ms Riordan? Or had she gone by that stage?

THE WITNESS: Well, yes, but – and I should also say that, as I said yesterday, that the other officers including the senior officers in the Department also had concerns.

MR WILSON: When you made your representations, did you do that in writing?

THE WITNESS: There – there were emails, yes, but unless you can show me the emails that I wrote at the time, my recollection isn’t precise enough to tell you who and when - - -

MR WILSON: Part of the problem, Mr Kimber, is we might not have been given those emails. Do you recall where you kept them?

THE WITNESS: What do you mean by - - -

MR WILSON: Did you store them in your computer at work?


MR WILSON: Do you keep them on an iPad or an iPhone or at home?

THE WITNESS: No. No. I used the Department’s IT system.

MR WILSON: Right. So if there were emails sent by you, you would have saved them in your – what – Outlook file or - - -

THE WITNESS: They would be in my Outlook, yes.

MR WILSON: Right. But you recall – do you recall actually sending emails?

THE WITNESS: I recall sending lots of emails but I don’t recall who I said - - -

MR WILSON: It’s a pretty serious topic, isn’t it?

THE WITNESS: Yes.


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COMMISSIONER: Mr Kimber, I’m going to come in here. This is really very serious evidence. At times, you’re a bit vague and at times you’re quite specific, so I would ask you to be very careful here because it may put the Australian Government’s solicitor on a length chain of searching for emails that may or may not exist. But I think you can work on the basis that if we’ve got them, Mr Wilson is aware of them. So if there are some that we haven’t got, well then someone is going to have to look for them. So would you bear that in mind when you’re answering his questions? Are there or are there not emails in which you raise your concerns that you haven’t been shown by Mr Wilson so far?

THE WITNESS: I’m sorry, but I can’t be precise about who and when I sent emails to and what the content were, only that I recall being concerned throughout 2009 and that I raised those concerns with my superiors.

COMMISSIONER: All right. Well, I just want you to realise, this is very important evidence you’re giving at the moment so be careful to be accurate.

MR WILSON: And I’m not asking you to say that, “On such and such a day, at such and such a time, I sent an email to X”. What I’m asking you more generally is do you recall sending emails raising your concerns?

THE WITNESS: I can’t even be sure about that. I’m sorry.

MR WILSON: If you made representations to your superiors, would you expect it to be done by email?

THE WITNESS: I think in some cases, yes, you could expect it to be done by email. For example, the email that I sent to Mr Keefe on the evening of 3 April.

MR WILSON: Yes.

THE WITNESS: So that would be one example. On other occasions, I raised things at a personal level including in meetings and including privately.

MR WILSON: Yes. Do you recall whether or not Mr Keefe had the practice of keeping a notebook of discussions he had?

THE WITNESS: I don’t recall that.

MR WILSON: Do you recall ever having meetings with him where he was making notes in a pad?

THE WITNESS: Possibly, yes.

MR WILSON: You may not be able to answer this but that – the topic that you’re talking about really is a serious one in the sense of you have very serious concerns which you’re reporting to your superiors.


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THE WITNESS: Yes.

MR WILSON: You would expect that information would also be taken seriously by your superiors.

THE WITNESS: Yes, and it was.

MR WILSON: How do you know that?

THE WITNESS: Because people in our team were concerned and expressed those concerns at the time.

MR WILSON: And how did they express those concerns, then? Did they send an email back to you or record it in some other way?

THE WITNESS: Look, I can’t recall whether people sent emails to me expressing concerns. They may have. And it’s too long ago. My profile was – has been deleted since I left the Department so I have no way – and I’ve had no way in preparing to appear to go back and look at the emails that I sent at the time.

MR WILSON: Have you asked to look at them?

THE WITNESS: No.

MR WILSON: If they can be retrieved from storage or backup tapes?

THE WITNESS: Well, I don’t know if they can be.

MR WILSON: Your evidence is you haven’t asked to look at them.

THE WITNESS: That’s right.

MR WILSON: But if they exist, you would like the opportunity of a review.

THE WITNESS: No, I didn’t say that.

MR WILSON: No, I’m asking you. If they exist and can be retrieved, would you like the opportunity of reviewing them?

THE WITNESS: Well, if I’m asked to do something to assist the Commission, then clearly I have to do that.

MR WILSON: Could I take you please to QLD.001.001.0096 please.

MS ..........: .....


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MR WILSON: My note says 001. 001.001.0096. Now, Mr Kimber, do you recall a gentleman named Tony Leverton from Queensland?

THE WITNESS: Yes, I do.

MR WILSON: What did you understand his position to be in 2009?

THE WITNESS: I believe he worked for the Electrical Safety Office.

MR WILSON: And do you see there that he sent you an email on 30 October?

THE WITNESS: Yes.

MR WILSON: Providing names of insulation installation companies that were associated with reports about electric shocks since May 2009; do you see that?

THE WITNESS: Yes. MR WILSON: And we just – can we just move it up a little bit so we get the names there. And he provided you with the names of those companies. Now, just scroll down to the next email from you to Mr Leverton. A couple of queries. I suppose the fact that the first fatality had occurred makes it obvious but you were searching for information about other incidents that had occurred in Queensland - - -

THE WITNESS: It seems that way, yes.

MR WILSON: - - - involving electrical shocks.

THE WITNESS: Yes.

MR WILSON: And Queensland had that information available to it.

THE WITNESS: Yes.

MR WILSON: Do you recall ever making an inquiry of that sort of Queensland or any other state or territory before 14 October 2009?

THE WITNESS: I don’t recall specifics but I recall having contact with the Queensland Electrical Safety Office.

MR WILSON: Before 14 October?

THE WITNESS: Possibly, yes.

MR WILSON: Do you recall whether there was any, in effect, standing request in place to any state or territory to say, look, if incidents come up that you become


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aware of, can you send it on to us please? Because it seems when you make a specific request, you get the information back very quickly. THE WITNESS: Yes. So what’s the question?

MR WILSON: Do you recall whether prior to the first fatality, as part of the liaison between Commonwealth and states and territories, there was any standing request that the states or territories forward to the Commonwealth, to the HIP team, incidents that they become aware of under the HIP such as electric shocks, perhaps fires, perhaps something else.

THE WITNESS: Yes. I recall that we made attempts to engage with the OHS agencies in the states and territories from the early part of 2009 in the same way that we did with the consumer organisations. And there would be documents of those interactions including emails.

MR WILSON: So it’s your understanding that there was, if not a standing request, then at least a desire expressed to the states and territories to be kept informed of incidents that occurred under the HIP?

THE WITNESS: Well, I think it was more than that. I think there was a recognition that the states and territories had the regulatory authority and that the Commonwealth did not and therefore we were reliant on the states and territories to guide us in terms of what was required in their state and also to do compliance work. MR WILSON: I’m talking about something different than regulatory responsibility. I’m talking about the flow of information. That is, given an incident happens in Queensland, say, where someone receives an electric shock as a result of metal foil – just take that as an example.

THE WITNESS: Yes.

MR WILSON: Queensland workplace health and safety may well investigate that and come to a conclusion.

THE WITNESS: Yes.

MR WILSON: That’s something different from them telling the Commonwealth about it.

THE WITNESS: Yes.

MR WILSON: So the Commonwealth can be kept appraised that there’s an incident in Queensland, there’s one in Northern Territory, there’s one in South Australia.

THE WITNESS: Yes, that’s right.


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MR WILSON: Is there that sort of information flow?

THE WITNESS: I don’t recall a lot of information coming from the states and territories and I recall that we attempted to engage with them and that that engagement fell below what we had hoped for.

MR WILSON: And do you recall why that was?

THE WITNESS: No.

MR WILSON: Could I take you please to QLD.001.001.0159, please.

MS ..........: .....

MR WILSON: I can, with a clear conscience, Commissioner, say I have no involvement in what goes in or out of the computer system.

COMMISSIONER: I’m sure of that.

MR WILSON: Okay. Now, this is a document from you to – who’s Peter Lamont?

THE WITNESS: Was he the gentleman in the previous email?

MR WILSON: Yes, he was referred to. THE WITNESS: Okay. Well, I think he might have been from Queensland.

MR WILSON: Yes. And this is then providing him with some information about how many foil installations had been done both nationally and in Queensland. So there seems to be then this exchange of information happening after the first fatality.

THE WITNESS: Yes.

MR WILSON: Is that fair summation?

THE WITNESS: Yes.

MR WILSON: And where would you have got that information from? Is there some button you can push in the system to say how many foil ones have been done?

THE WITNESS: So by this stage, other parts of the department, not the area that I worked in, had developed a system that would allow them to monitor the program in various ways and that’s where those numbers would have come from. MR WILSON: That is, if a claim for payment is put in by an installer, do they have to indicate the type of material that they’re using?


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THE WITNESS: Yes. MR WILSON: And did you distinguish between foil rollout membrane and foil batts? Do you know what I mean by foil batts?

THE WITNESS: Yes. I recall that they had to tick a box on the work order form to indicate what type of material but I don’t recall whether there was a distinction made between those two.

COMMISSIONER: Mr Kimber, would that have been in from 1 July?

THE WITNESS: The work order form?

COMMISSIONER: The ability to distinguish between what sort of insulation was put in.

THE WITNESS: I believe that there was that checklist along with other information that existed in the work order form and the date that the work order form came in, I would need to check the documents, but that was something that was there including in the rebate phase, I believe.

MR WILSON: So at any point – just to pick up what the Commissioner said – at any point in time, if a concern was raised about a particular work practice with a particular type of insulation, you could go into the system and interrogate it and find out how many installations used that type of material.

THE WITNESS: There would have been a way, yes. And that system became more advanced throughout the year. At the beginning it was all paper based and so that would have been quite difficult but as the system was developed, then it became easier to – had more capability.

MR WILSON: And it could be drilled down to things like has bioelectric, couldn’t it?

THE WITNESS: Yes.

MR WILSON: Okay. Could we go to AGS.002.013.0269 please, if I can retrieve that other document. 002.013.0269. And scroll down the screen. Keep going down. I think these are in reverse order again. We see 9 October. Do you know who Mali or Mali Stanton was?

THE WITNESS: Yes.

MR WILSON: Yes. Who was she?

THE WITNESS: She worked in public affairs.


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MR WILSON: And Kathy Belka?

THE WITNESS: Yes.

MR WILSON: Who was she?

THE WITNESS: She was my boss.

MR WILSON: Did she take over from - - -

THE WITNESS: Beth Riordan.

MR WILSON: - - - Beth Riordan.

THE WITNESS: Yes. MR WILSON: This is at a time when there had been some fires; do you recall that? And the newspaper in Brisbane, the Courier Mail, was running some articles about the link between the fires and the Home Insulation Program.

THE WITNESS: Yes. MR WILSON: And Tracey Bell, she was in communications?

THE WITNESS: Yes.

MR WILSON: And you were trying to get together some information to provide to the Minister; is that how I understand it?

THE WITNESS: Yes.

MR WILSON: See the last – fourth last line?

THE WITNESS: Yes. MR WILSON: Okay. Now, can we scroll – that’s 9 October. And Mali Stanton writes back to the group of people including yourself providing that information for the Minister. Did you have any part in the collation of that or are you simply being kept in the information loop?

THE WITNESS: I’m not sure but it looks like I was just in the loop rather than drafting it and that Mali drafted it.

MR WILSON: Were you aware of an issue being raised – I’m looking at the bottom section of that page, Background for the MO – of there being an issue with Queensland about releasing information at that time?


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THE WITNESS: I can see the bracket Queensland has refused to provide details. Yes.

MR WILSON: Were you aware of that difficulty, if you like?

THE WITNESS: I don’t have specific recollection of this example but, as I mentioned before, I remember that the level of engagement that we had with the states and territories on safety issues was below what we had hoped.

MR WILSON: Just scroll up to the next one. That’s your contribution. Were you in the policy team at that stage?

THE WITNESS: Yes. MR WILSON: Okay. And scroll up to the next one. And scroll up to the next one. So you were trying to follow through the addresses of the particular properties that fire had occurred – at which fire had occurred?

THE WITNESS: Well, the compliance team would have been doing that because we didn’t have visibility of the system.

MR WILSON: And I take it that, picking up the point that we were talking about earlier, that if you could get the addresses you could through your system and then find out who the installer was.

THE WITNESS: Yes.

MR WILSON: Thank you. Could we go to AGS.002.012.1157, please. If we scroll down to the bottom email. Do you recall the engagement of the Institute for Sustainable Futures from the University of Technology in Sydney?


MR WILSON: And this is 13 October. Do you recall what work they were asked to do?

THE WITNESS: No. I would need to look at their report.

MR WILSON: That is, I’m not quite sure what HIP program modelling means. Does it look like you’re revising the program in some way?

THE WITNESS: I would need to look at the report that Caitlin sent.

MR WILSON: Okay. We will see if we can dig that out for you. Are you aware whether they actually produced a final report?

THE WITNESS: I would – no, I’m not.


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MR WILSON: Okay. Could I take you then to AGS.002.012.0494, please. Do you recall after the second – I’m sorry, after the first fatality, there was then some discussion about developing a risk assessment form to be completed on all jobs?

THE WITNESS: Yes.

MR WILSON: And that ultimately came forward and was drafted and formed part of the revised guidelines from 1 December. I was really perhaps inquiring as to why that task wasn’t done much earlier. It seems something that’s obvious. There may have been a reason for it. I’m just inviting your comment about it.

THE WITNESS: I don’t recall why the decision was taken to not do this earlier but I recall that the Department was attempting to put in place additional measures that could, at the front end of the installation process, reduce the likelihood that risks might occur, and I recall being frustrated at the time because for mine, the business model that had been selected and the pace of the rollout and the scale meant that none of these measures would adequately control the risks that they were – given the structure of the program and the conditions in terms of the level of demand that these additional measures may provide some level of comfort but they wouldn’t reduce the risk to zero.

MR WILSON: But there’s obviously a reason for introducing it post 1 December.

THE WITNESS: Yes.

MR WILSON: It’s something that the installer has to do - - -

THE WITNESS: Yes. MR WILSON: ..... the government doesn’t have to do it.

THE WITNESS: Yes. MR WILSON: One would think that if one is undertaking work that involved risks, at least mentally, you do a risk assessment anyway.

THE WITNESS: Yes. MR WILSON: Just why the requirement to have a document show that that process has been carried out could have even taken much time. Was it something that simply wasn’t thought of?

THE WITNESS: No. I think adding this type of process into the program at the early stage would have been seen as something that would have created a drag on the rollout.

MR WILSON: Another hurdle.


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THE WITNESS: Potentially. And so as the program developed and some of these risks started to come to fruition, there was potentially more ability or appetite among decision makers to add things that would potentially be additional requirements on the installers.

MR WILSON: Or putting it slightly differently, their appetite for risk seemed to diminish.

THE WITNESS: I think it was more that people were concerned that if you put additional requirements on the installers, whether it be through the registration process or the process to claim the payments or the quoting or pretty much anything that would have the potential to slow down the program, that that was a consideration in whether you should do it or not.

MR WILSON: And I suppose the question that flows from that was consideration given to it and a decision made not to impose that requirement on installers as opposed to it not being through of.

THE WITNESS: I don’t know if consideration was given to it before this time and when that consideration was given.

MR WILSON: Could I take you to QLD.002.001.1022, please. 1022. While that’s being brought up, do you recall fires starting to become an issue in August 2009?

THE WITNESS: I recall being concerned about fires from the very beginning.

MR WILSON: And the actuality of fires starting to occur in August 2009?

THE WITNESS: Well, I would need to see the documents as to when the first fires occurred. I don’t know when they occurred.

MR WILSON: And one of the issues that was involved in fires was the need to have downlight covers - - -

THE WITNESS: Yes.

MR WILSON: - - - over recessed lights.

THE WITNESS: Yes.

MR WILSON: And that was something that was raised right at the start or - - -

THE WITNESS: Yes.

MR WILSON: But there was no requirement to have downlight covers until later on.


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THE WITNESS: There was – my understanding was there was no requirement to have them under the Australian standard and because we were looking to rely on existing regulations and standards, that we had to go with that initially.

MR WILSON: Just before we break, what – there were obviously a number of standards in place. There were wiring rules, there was a standard for insulation, 3999 - - -

THE WITNESS: Installation. MR WILSON: Installation of thermal or ..... insulation.

THE WITNESS: Yes. MR WILSON: Did anyone at the start, to your knowledge – I appreciate you came in really quite early – sit down and say, look, these standards, some of them are quite old.

THE WITNESS: Yes.[11.00 am]

MR WILSON: They don’t really cover what we want to do.

THE WITNESS: Yes.

MR WILSON: Somebody did that?

THE WITNESS: I was concerned about that, yes.

MR WILSON: And what was your concern?

THE WITNESS: That they may not – that there may be issues with the Australian standards that wouldn’t – that there could be problems that would arise even from complying with that standard. That the standard itself may not be robust enough.

MR WILSON: And did you communicate those concerns to your superiors?

THE WITNESS: Yes.

MR WILSON: And did they share your concerns in the same way we’ve discussed with other matters?

THE WITNESS: I can’t comment on whether they shared my concerns on that.

MR WILSON: You don’t recall them saying to you yes, we realise that or no, that’s not right or any reflection on what you’ve said?

THE WITNESS: I recall discussions but I don’t – I can’t speak on their behalf.


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MR WILSON: Okay. Is that a convenient time, Commissioner?

COMMISSIONER: Yes. Adjourn till 11.15.

ADJOURNED [11.01 am]

RESUMED [11.17 am]

MR WILSON: Could I bring up AGS.002.028.1920, please. Is that AGS.002.028.1920? You were asked before, Mr Kimber, to see the document produced by the University of Technology in Sydney. I think – hopefully this is it. Can we scroll down to the first page. Do you recall Conell Organ, Geoff Milne, Caitlin McGee?

THE WITNESS: I recall Caitlin McGee but not the others.

MR WILSON: And you will see that that’s a final draft of the report. Just scroll down. Keep going. Keep going. That’s it. Executive summary. It seems to be related to, if you like, more technical energy efficiency issues. Do you see that?

THE WITNESS: Yes.

MR WILSON: Rather than what I would call safety issues.

THE WITNESS: That’s right, yes.

MR WILSON: Okay. Is there anything else that you would want to see in that report before I take it down?

THE WITNESS: I – I think that’s fine. Thanks.

MR WILSON: Thank you. Can I bring up QIC.006.001.3531. Now, is it possible, operator, to go to page 3565 which would be 34 pages in. One more page. That’s it. Now, this is a document from the Queensland Government.

THE WITNESS: Yes.

MR WILSON: And you will see there, “Actions taken and plan by Queensland government agencies”. Just scroll up if you would, just to see if we can pick up the context of this. Keep going. Just to the top of that email. Keep going to the top of the email. Okay. There’s an email from Mr Leviton who we’ve previously seen to you, responding to your email and he’s providing you with some information about the Queensland statutory or regulatory scheme. Do you see that?


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THE WITNESS: Yes. Yes.

MR WILSON: You presumably asked for that. You see it says:

Thanks for your email. I can give you the following information.

THE WITNESS: Okay.

MR WILSON: I’m just wondering if this is the first time that you were learning about the particular statutory or regulatory regime in Queensland.

THE WITNESS: What was the date of this email?

MR WILSON: 21 October.

THE WITNESS: No. We – we would have known about this from the beginning.

MR WILSON: I’m just wondering why you would be looking at it again in October. Was it because of the first fatality or - - -

THE WITNESS: Well, do you have the email that I wrote to Tony that my - - -

MR WILSON: Just scroll up, Operator. You will see – they might be in reverse chronological order, I think. Yes. Can we stop. Go back down to the one I was looking at. And we might, when we finish this, come across your email. I’m not sure. But do you see there he’s providing you with that information. Do you say you already knew that?

THE WITNESS: No. I mean, I accept that he’s providing me information and it – and that I - - -

MR WILSON: I think you said in answer before that this wasn’t the first time you found out about this information. You already knew it.

THE WITNESS: Well, we knew that the – that there was a duty of care and legal obligations for employers that existed in the states and territories from the beginning of the program.

MR WILSON: And did you know the particular statute that applied in each state and territory for workplace health and safety?

THE WITNESS: No, I did not.

MR WILSON: And that’s what you were asking for.

THE WITNESS: Well, I – I don’t know what I was asking because I can’t see my emails.


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MR WILSON: Right. But do you recall this is the first time in which you’re being told what the statutory scheme is in Queensland in this case?

THE WITNESS: I don’t know if it was the first time I was being told about that.

MR WILSON: Do you recall whether, so far as you were concerned, there was an assumption from the people in the HIP team that states and territories would perform their obligations under their various occupational health and safety regimes?

THE WITNESS: Yes.

MR WILSON: Do you think it would have been appropriate at that time to find out what those regimes were?

THE WITNESS: Yes.

MR WILSON: That is, in May of 2009.

THE WITNESS: Yes.

MR WILSON: Did you?

THE WITNESS: We – we did. We – we became aware from the beginning of the program that – that employers had these obligations that existed in states and territories and as part of drafting the guidelines, there was a sense that those – those things would – would need to be included as requirements that the installers had to comply with.

MR WILSON: Okay. If we just roll through so that Mr Kimber can at least skim read Mr Leviton’s email. So he’s setting out provisions of Queensland statutes. Keep going. And then the part I was taking you to, “Update on actions on taken and planned by Queensland government agencies.” Can we go back up to where I was. Okay. And he’s explaining to you what they’re doing in Queensland at that time.

THE WITNESS: Okay.

MR WILSON: And, obviously, he has been passed some information by Mr Richards, the CEO of Master Electricians.

THE WITNESS: Okay.

MR WILSON: And they’re pointing out their concern that the advisory note to installers contained some errors. Were you aware of that issue?

THE WITNESS: No. I – I don’t recall this issue.

MR WILSON: Okay. Just keep scrolling down, please, to the next page.


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COMMISSIONER: What about the paragraph above that, Mr Wilson? Of Brian – a reference to Brian Tikey. Have we got that information?

MR WILSON: I’m sorry, Commissioner?

COMMISSIONER: I just wondered about that paragraph where it says:

We are happy to talk to Brian Tikey –

and then his media release of 16th of - - -

MR WILSON: Yes, we have the media release.

COMMISSIONER: Okay.

MR WILSON: Yes. So if we can scroll down then to the next page. You see this is the email from you. Keep going. Do you see that paragraph saying, “We would like to understand”?

THE WITNESS: Yes.

MR WILSON: Is that not something that was already known to you?

THE WITNESS: Well, we knew that those obligations existed in states and territories and the – so, yes, we – we referred to them in the program guidelines.

MR WILSON: So what did you need to understand?

THE WITNESS: I’m not sure of the context at the time other than that I recall that our level of engagement with states and territories was below what we expected.

MR WILSON: It couldn’t be the case, could it, that this is the first time you’re finding out the substance of the Queensland of workplace health and safety regulatory regime?

THE WITNESS: No.

MR WILSON: You’re sure of that?

THE WITNESS: I’m certain of that, yes.

MR WILSON: Okay. Can we go down to page 41 of the document. Page 3572 at the top. Yes, it’s the next one. Okay. Now, do you know Mr Hoitink?

THE WITNESS: Yes.

MR WILSON: He was part of the team?


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THE WITNESS: Yes.

MR WILSON: You see there that Mr Hoitink is advising his Queensland colleague:

The register does not contain details of the insulation material that is used.

That seems different to what you said earlier, and I appreciate this isn’t your email.

THE WITNESS: I don’t – don’t know why Mr Hoitink would have said that.

MR WILSON:

And we have claim details but there are some privacy issues with disclosing that information.

So this is the commonwealth saying, “Well, we have the details, but we might not be able to give it to you unless you’re enforcing a relevant state law,” you see?

THE WITNESS: Yes.

MR WILSON: And this goes to this question of the exchange in information.

THE WITNESS: Mmm.

MR WILSON: Do you recall that there was a concern that the commonwealth couldn’t give details to the state or territories of installers?

THE WITNESS: I think you would need to speak with Mr Hoitink about that.

MR WILSON: Okay. That’s not something that you were concerned with?

THE WITNESS: No.[11.30 am]

MR WILSON: Can we go to page 57 of that document which is 3588 at the top. Did you play any part in drafting correspondence that was eventually sent by the minister? That is, perhaps even a first draft or second draft?

THE WITNESS: I don’t recall writing this letter, no.

MR WILSON: Do you recall that there was an exchange of correspondence between the minister of your department and his state counterpart in Queensland?

THE WITNESS: I – I have a vague recollection of that, yes.

MR WILSON: And this is following the death of Mr Fuller on 14 October.

THE WITNESS: Okay.


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MR WILSON: Mr Garrett urging Queensland to have a – to consider having a coronial inquiry. Do you see that?

THE WITNESS: Yes.

MR WILSON: Just keep scrolling down. You see that sentence, “Safety is the top priority under the program”?

THE WITNESS: Yes.

MR WILSON: Having regard to the evidence you’ve given, what do you say as to that statement?

THE WITNESS: I think safety was a top priority under the program. I agree with this statement and it was concerning that – that due to the business model selected and the speed of the implementation that risks were emerging.

MR WILSON: The risks that were known before they emerged?

THE WITNESS: Yes.

MR WILSON: Can I take you to AGS.002.006.0161, please, and we might need to go down to the end to see the email chain. Do you recall your team – just if we go back up to the start of that email – Louie Courtney.

THE WITNESS: Yes.

MR WILSON: Who is she?

THE WITNESS: She worked in the same branch as me.

MR WILSON: Do you recall making inquiries of the various states and territories about the incidents of house fires from about 12 October 2009?

THE WITNESS: I recall receiving information about house fires but I don’t recall exactly when. MR WILSON: And this is an example of a response, in this case, from Victoria.

THE WITNESS: Okay. MR WILSON: And I think we went to the end before that this is from Commander Hunter.

THE WITNESS: Yes.

MR WILSON: From the Metropolitan Fire Brigade in Melbourne.


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THE WITNESS: Yes.

MR WILSON: And he set out a number of concerns about insulation installation practices; do you see that?

THE WITNESS: Yes.

MR WILSON: All of those dot points.

THE WITNESS: Yes.

MR WILSON: What was done when this sort of information came in?

THE WITNESS: It was treated seriously and it was concerning.

MR WILSON: Okay. What was done when it came in?

THE WITNESS: Well, it looks like, in this case, that Louise may have prepared a response or may have passed it on - - -

MR WILSON: Just scroll up so Mr Kimber can see. See that? So did you get the addresses of the house fires?

THE WITNESS: I don’t recall but I would have if that’s what I said I was going to do.

MR WILSON: And then you would have written to each of the agencies.

THE WITNESS: Yes. MR WILSON: Do you recall collating that information about the occurrence of house fires, who was the installer, what type of material they were using, etcetera?

THE WITNESS: I recall that I was involved in some of that work and also the compliance team.

MR WILSON: And was that then collated in some way so that people could have access to the shared body of knowledge.

THE WITNESS: Yes, I recall the compliance team was attempting to look at issues of incidents like this and which installers were involved.

MR WILSON: And to what end?

THE WITNESS: So that they could conduct compliance work.


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MR WILSON: Right. And also to see whether there was a risk emerging or noncompliance with installation guidelines with a view to perhaps deregistration or stopping payments?

THE WITNESS: Yes, that’s correct.

MR WILSON: If we scroll up to the top. And you will see there that – who was Matthew Kinch?

THE WITNESS: He was another director that worked in the compliance area.

MR WILSON: All right. And finally we can go up to the – see there David – sorry, can you just go up a little bit. That’s it. Mr Hoitink was telling you it was sent to all other states and territories; do you recall that? There’s a similar request for information about house fires was sent to each state and territory.

THE WITNESS: Okay. I accept that.

MR WILSON: Okay. And finally, could I take you to AGS.002.017.2154 please. Do you recall setting up and meeting - I will let you read that to yourself.

THE WITNESS: Yes.

MR WILSON: Do you recall setting up such a meeting?

THE WITNESS: I recall elements of it, yes.

MR WILSON: Can we go to AGS.002.014.1464, please. And do you see there there’s a meeting of trading organisations to discuss safety issues – electrical and insulation safety issues. Do you recall if you prepared this document? Just scroll down through it.

THE WITNESS: I don’t know. It looks like I may have.

MR WILSON: Do you recall attending the meeting where all of these different organisations were present?

THE WITNESS: Yes.

MR WILSON: Now, just go back to the top of the document. One of the issues obviously, given the current – the recency of Mr Fuller’s death would have been the continued use of foil either at all or in association with metal staples.

THE WITNESS: Yes. MR WILSON: And does this document then set out the various position of the contributors to the meeting or the participants in the meeting?


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THE WITNESS: It seems to do that, yes. MR WILSON: And some people were saying foil should be banned and some were saying it shouldn’t be banned.

THE WITNESS: Well, I need to read it but I would imagine that would have been the case, yes. MR WILSON: Yes. Do you recall, consequent upon this meeting, the HIP team coming to its view about which way it should go? That is, foil being banned or not being banned or certain practices being stopped.

THE WITNESS: I remember discussions, yes, but I don’t remember – I don’t remember the team that I was working in forming a view other than that we were concerned about the risks and there would be impacts on the program including reduced ability for that sector of the market to participate and that we were aware that that would be a consideration for the government in banning a particular product type. And also that if you banned one product type because of a safety issue, that there were safety issues with the other product types as well. And so my role was to provide information to my superiors and ultimately to the Minister on what the issues were that we’re aware of, what the stakeholders were saying so that they could make a decision.

MR WILSON: We’re aware that as a matter of fact, a departmental brief went to the Minister recommending that foil not be banned.

THE WITNESS: Okay.

MR WILSON: Were you aware that the HIP team came to that view?

THE WITNESS: Well, I would need to see the brief. I can’t recall the context.

MR WILSON: I’m asking whether you were aware that the Department came to that view, that is, not ban as opposed to ban.

THE WITNESS: I can’t recall exactly what the Department’s view was at the time.

MR WILSON: Okay. Was that your view that it should or shouldn’t be banned?

THE WITNESS: As I said, I can’t recall what the Department’s view was or what - - -

MR WILSON: No, your view.

THE WITNESS: My role was to gather the information and provide that to people to make the decision. It wasn’t to make the decision.


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MR WILSON: I’m not saying you make the decision. I’m asking for your view. Your view may have been ignored or dismissed but I’m just asking what your view was.

THE WITNESS: Well, my view was that the risk in the program was at such a level that it was likely that there were going to be further occurrences of these incidents.

MR WILSON: And?

THE WITNESS: And that that was concerning enough that we should take a time out on the program.

MR WILSON: And at least suspend the use of metal foil rollout or stop the program altogether?

THE WITNESS: I think there was a range of things you could have done but we definitely needed to consider those options as well as other options.

MR WILSON: Now, I did say that was the final thing but there’s one more thing I should, out of fairness, put to you. Do you recall going to an industry meeting on 20 March 2009 chaired by Minister Garrett.

THE WITNESS: I recall a meeting, yes.

MR WILSON: And at that meeting, a number of industry players were – industry representatives were there.

THE WITNESS: Yes. MR WILSON: And do you recall one of those industry members saying words to the following effect, the insulation industry is a highly skilled industry.

THE WITNESS: I would need to see the minutes to know - - -

MR WILSON: Not in the minutes.

THE WITNESS: Well, I can’t recall that, sorry.

MR WILSON: So if it’s not in the minutes, you can’t recall it?

THE WITNESS: No.

MR WILSON: Well, I won’t put it to you then. Those are the questions I have.

COMMISSIONER: You just said to Mr Wilson that you needed to take time out. I take it time out means stop the program and think about where we’re going and analyse it more thoroughly; is that right?


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THE WITNESS: Yes.

COMMISSIONER: That’s what you meant by time out?

THE WITNESS: Yes.

COMMISSIONER: Why did you need time out?

THE WITNESS: Because in my view, the risk in the program was such that there was a likelihood that these occurrences would happen again.

COMMISSIONER: And when you say occurrences, you’re talking about the electrocution in particular.

THE WITNESS: Yes.

COMMISSIONER: Are there other occurrences you’re referring to?

THE WITNESS: Fires, other injuries.

COMMISSIONER: What other injuries?

THE WITNESS: Well, the injuries that could be associated with the working at height, in confined space - - -

COMMISSIONER: What, falling through the ceiling?

THE WITNESS: Potentially, yes.

COMMISSIONER: I see. Yes. All right. Mr Perry.

<EXAMINATION BY MR PERRY [11.42 am]

MR PERRY: Can the witness please AGS.002.023.3151. This refers, Mr Kimber, to the meeting of 8 May. There’s a couple of emails from you we’ve managed to find. Now, that’s the second of them so scroll down. Now, stop. Up a bit. Now, you’re the author of what I’m about to show you ..... scroll up to go to the top of that email. A little bit further. Stop there. 8 May, 4.24, you to various people. What you seem to be referring to is a summary by you of the key outcomes of that meeting on that day. Okay? Now, just scroll down a bit. All right. Stop there. A little bit further. We will see if we can do this in the one ..... yes, we can. Good. Now, do you see under “Minimum competency requirements”, first dot point:

Associations recognised that while a mandatory enterprise unit would be ideal that would not be possible by 1 June.

10.4.14 P-2623 W. KIMBER XN©Commonwealth of Australia MR PERRY

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Did you mean 1 July, or 1 June? Do you remember?

THE WITNESS: I don’t recall the specifics of when the training was due but I recall that there was a need to have the training available so that it could be completed ahead of the commencement of the program.

MR PERRY: So 1 July – so 1 June might be right because that gives it a month to do before the program rolls out on 1 July.

THE WITNESS: Potentially, yes.

MR PERRY: Right. Now, scroll up please. Keep going. In this email, now, a little bit later in the day, “forgot to mention” you say. See the first heading, “Enterprise training unit”? First dot point, “Range of views”. What you seem to include in this email are some of the views from the major industry players that you were referring to earlier.

THE WITNESS: Yes.

MR PERRY: Master Builders, ICANZ, etcetera agreed that new entrants would need the one day plus two days insulation specific training. ACIMA felt strongly it should be at least a week and all participants felt that a three day course wouldn’t be a barrier.

THE WITNESS: Okay.

MR PERRY: Right. Now, that’s what they’re telling you in that meeting. Scroll down now, please. A little bit further. Now, stop. Up, up a bit. Right. That minimum competency requirement section that I touched on earlier:

There was general agreement, you note, that the minimum requirement struck an acceptable balance but -

Then down to the next page, (c), “given”:

Struck an acceptable balance given (1) the lack of time for an enterprise unit -

Which I take it to be acceptance that the enterprise units that the industry people were referring to in that second email of yours couldn’t be done or put in place by 1 June and therefore the training wouldn’t have been completed by 1 July. That seems to accord with your recollection, does it?

THE WITNESS: I – I recall that industry at the time were concerned with any addition – what they saw as burden that would be placed on them by the Commonwealth and that they were primarily concerned with their ability to participate in the program in the sort of fastest and – in a way that they felt allowed them to participate as fully and quickly as they would like.


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MR PERRY: All right. Just – we will get there in a minute. You note that there was general acceptance – sorry, there was acceptance that it struck an acceptable balance but, (1), given the lack of time for an enterprise unit and, (2), the need for low entry barriers. It’s the second thing you note. Okay?

THE WITNESS: Yes.

MR PERRY: All right. Go back up to the top of that second email of yours. Stop.

All participants felt that a three day course would not be a barrier.

Right. So that’s what they’re telling you.

THE WITNESS: Yes.

MR PERRY: If they’re telling you that a three day course would not be a barrier, why was it – can you tell me – that such a three day course was not actually instigated?

THE WITNESS: Well, can you be more specific?

MR PERRY: Yes. Try again. They are telling you that a three day course would not be a barrier. That is, a three course for installers would not be a barrier. We know that that was not a requirement under the guidelines because the guidelines were changed on 8 May. Can you tell us why, if the participants are telling you that a three day course would not be a barrier, why such a three day course was not included in the guidelines that came out on or about 8 May?

THE WITNESS: Well, because there were – there were two things going on. There was the rebate that was already underway that the government had announced that would start effective immediately of the media release on 3 February, and then there was the second phase of the program which started on 1 July.

MR PERRY: And we’re talking about the second phase of the program here, aren’t we?

THE WITNESS: It’s not clear to me what this email is referring to.

MR PERRY: Well, let me suggest what it might be referring to, not withstanding it’s your email. There was a meeting of all of these people on or about 8 May. You attended it and you sent two emails to the people referred to about what occurred at it. Do you agree with that part?

THE WITNESS: Yes.

MR PERRY: Right. In the earlier of the two emails, there was reference to the need for a low barrier. Do you recall that bit?


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THE WITNESS: Yes.

MR PERRY: In the later of the two emails, where you forgot to mention something in the earlier so you come back and revisit it, you note that all participants at the meeting agree that a three day course would not be a barrier. Now, if it wouldn’t be a barrier, why was it – can you tell me – that this three day course was not part of the guidelines that were required with respect to the training of installers?

THE WITNESS: Well, the training that was developed for the second phase didn’t exist. It had to be developed.

MR PERRY: Indeed. That’s what you’re talking about at this meeting on 8 May, aren’t you?

THE WITNESS: So – so – yes.

MR PERRY: Right. Well, if you’re talking about the training for the second phase and if everyone is telling you a three day course for installers would not be a barrier, can you tell me why – if you know – such a three day course was not included in the guidelines that came out on or about that date?

THE WITNESS: Because the program training that we were developing for the 1 July did not exist until around June.

MR PERRY: And I once more – that program training is exactly what you’re talking about in this meeting of 8 May, isn’t it?

THE WITNESS: It’s actually not clear to me. I would need to refresh myself on the purpose of the meeting, whether it was - - -

COMMISSIONER: Take your time to read the emails from beginning to end.

MR PERRY: Read your two emails. Okay?

COMMISSIONER: Just tell the operator to scroll up or down.

MR PERRY: Up or down as you wish. So the one in front of you is the second of the two – that is, later on the day of 8 May. So if you want to start with the first one, which you’re just at the beginning of at the bottom of that page. Read it and then just ask the operator to move as you wish.

THE WITNESS: I mean, can you go right to the bottom? I don’t know what’s in this document.

MR PERRY: Yes. The operator will do whatever you wish. There is - - -

THE WITNESS: Can you start at the beginning?


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MR PERRY: Of this email that’s on the screen at the moment? Because they’re in reverse order. Or do you want to go further down?


COMMISSIONER: Let him read them in the chronological order, operator. Give them in the chronological order of the emails.

MR PERRY: That’s the first there. 4.24 on 8 May, from you.

Industry feedback on unit Q next Friday. Key outcomes of the industry consultation on training.

So it does rather seem that you’re summarizing what you thought the key outcomes were.

COMMISSIONER: Mr Perry, I would prefer if you let him just read it - - -

MR PERRY: All right.

COMMISSIONER: - - - because it’s an important piece of cross-examination.

MR PERRY: Yes, Commissioner.

THE WITNESS: Can you go down?

COMMISSIONER: Or examination.

THE WITNESS: So the context for preparing the training in the email from Jane is that it was to provide input to the materials being prepared by the CPSISC. So it was for the second phase of the program.

MR PERRY: Yes.

THE WITNESS: Not the first. Therefore it couldn’t be included - - -

MR PERRY: The one starting on 1 July?

THE WITNESS: Yes.

MR PERRY: All right. Well, we’re in agreement about that. Now, do you wish to read any of the emails of yours any further?

THE WITNESS: Well, it depends on your question. I don’t know what you want – what your question is now.


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MR PERRY: All right. I will try again. Go to the first of the two emails. Scroll up a bit.

COMMISSIONER: .....

MR PERRY: Yes. Stop. Right. You will see at the beginning of that page 2 of 3 there is reference to two things. One, the lack of time from an enterprise unit and that seems to relate to the fact referred to in the first dot point that a mandatory enterprise unit could not be possible by 1 June; that seems to make sense, doesn’t it?

THE WITNESS: No, it doesn’t.

MR PERRY: It doesn’t. Right. Now, your first dot point under minimum competency requirements associations recognise that while a mandatory enterprise unit would be ideal, that would not be possible by 1 June. Do you see that?

THE WITNESS: What I’m doing here is - - -

MR PERRY: No, just follow me through please. You see the first dot point of yours.

THE WITNESS: Yes, I do. MR PERRY: Right. Second dot point:

There was general agreement that the minimum requirement struck an acceptable balance given –

See after given –

the lack of time for an enterprise unit.

Now that expression, “the lack of time for an enterprise unit,” must relate to your first dot point that is a mandatory enterprise unit could not be possible by 1 June.

THE WITNESS: Okay.

MR PERRY: Do you agree with that?

THE WITNESS: Yes.

MR PERRY: Right. The second thing that you refer to as being relevant to this second dot point is the need for low entry barriers; do you see that?

THE WITNESS: Yes.


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MR PERRY: Right. Now, going after the latter of the two emails. That is, the latter in time. The fourth dot point under Enterprise Training Unit:

All participants felt –

Etcetera:

...that a three day $500 or more course would not be a barrier.

Now, relate those words, “would not be a barrier” back to the words “low entry barriers”, all right. Can you connect those two? Now, the point is, if they are telling you it is not a barrier, can you tell me why such a course did not ultimately end up as being a requirement under the guidelines?

THE WITNESS: When?

MR PERRY: When the guidelines were issued on or about this date where supervisor installer training was deleted and only supervisor training was retained.

THE WITNESS: Which date are you referring to?

MR PERRY: All right. On or about 8 May, the date I’ve been asking you about.

THE WITNESS: Because the course that the CPSIC did not exist until June.

MR PERRY: Okay. Thank you. That is your answer. Now, may the witness please see QIC.006.001.2924. These are installer advices. Are you familiar with them - - -

THE WITNESS: Yes.

MR PERRY: - - - that is, their concept?

THE WITNESS: Yes, I am. MR PERRY: Help me with this or help with Commission with this. How did any one installer advice come about? That is, how was it drafted, was it approved by the PCG or the technical team. Can you tell us how these things came to be produced?

THE WITNESS: Can you scroll down a bit so I can read it.

MR PERRY: Each installer advice is different and there are about 30 of them, as you can see, in this bundle. ..... I just ask you at the outset about the installer advice process. How were they generated? I will ask about the contents of some in a moment but just confine yourself to the general proposition of how these things came about.


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THE WITNESS: Well, my recollection is that there was a need to or there was a sense that you needed to communicate with the installers given that the program was already operating and so there was a need to have a way that all installers could learn about changes in the program and the program was still being developed even though it was operating which was awkward.

MR PERRY: Yes. That is the purpose of them, as I apprehend your answer, was to provide installers with important information with respect to the program.

THE WITNESS: Yes.

MR PERRY: And information they should read and of course adopt and put into practice.

THE WITNESS: Yes.

MR PERRY: You did say earlier though to Mr Wilson that one of the concerns you had, quite properly, of course, is that people might ignore things like installer advices.

THE WITNESS: Yes. MR PERRY: People might ignore things like Australian standards.

THE WITNESS: Yes.

MR PERRY: People might ignore, indeed, OH&S requirements in the various states.

THE WITNESS: Yes.

MR PERRY: And that’s a concern you have and I understand that. All I’m asking about at these installer advices is, and if it helps you the first one is actually on 29 June 2009, do you know how they were generated? That is, how they came into being. Was it out of your team, someone else, did it go to the PCG? How did it happen?

THE WITNESS: It depended on the content.

MR PERRY: All right. Then see if you can assist me with - - -

COMMISSIONER: You varied from installer notice to installer notice?

THE WITNESS: I believe so, yes.

MR PERRY: Will you go to page 2954. This is installer advice 11. Now, this is just a few days after Matthew Fuller’s death. Scroll up – the other way, please.


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Keep going. There we go. Stop. And when you want to read on, Mr Kimber, just tell the operator to scroll down.

THE WITNESS: Okay. Scroll down. Okay.

MR PERRY: Just stop there. What follows is a whole lot of state departments, etcetera. Now, you seem to get the gist of what is contained in this installer advice. It’s all about turning the power off, if I can use that expression globally.

THE WITNESS: Okay.

MR PERRY: Where would an installer advice of this kind emanate from?

THE WITNESS: I don’t recall the specifics of who drafted this or how it was drafted.

MR PERRY: That’s not quite what I asked you. Can you give us any assistance as to whether an installer advice containing material of this kind would come from? Your technical committee or someone else?

THE WITNESS: There are a number of people who were working – concerned with this issue by this stage of the program, not just myself.

[12.00 pm]MR PERRY: I don’t – I wasn’t suggesting for a moment that you are necessarily the author. All I’m seeking is your assistance as to who might the authors be. There might be more than one. Or what section it comes from, those sorts of things, that’s all.

THE WITNESS: Well, by this stage in the program, my recollection is that there was a group on DEEWR that was dealing with the internet based systems including inquiries and correspondence from householders and installers and that that group were in charge of the website, which was where these documents were placed.

MR PERRY: That’s where they were put. Is that the group that would also generate them or draft them?

THE WITNESS: No. It depends on the content.

MR PERRY: Well, that’s why I took you to this one. This content. Concentrate your mind on the content of this one.

THE WITNESS: I don’t recall - - -

MR PERRY: Can you assist us who might have been the section or the people responsible for drafting this one?

THE WITNESS: Look, I don’t recall who drafted this installer advice.


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MR PERRY: Nor the section or team or unit who had primary responsibility for these installer advices. Can you not recall that either?

THE WITNESS: Well, there was a team who had primary responsibility for them.

MR PERRY: Do you know if the installer advices went to the PCG?

THE WITNESS: I think some of them may have gone to the PCG.

MR PERRY: Now, just scroll up a bit. A bit further so we get the bottom of – down a bit – the bottom of that page and the top of the next, you see. All right. Stop there. See the last sentence on the top page? It then continues over to the bottom page.

THE WITNESS: Yes.

MR PERRY: That, as I apprehend your evidence to Mr Wilson, would be a sentiment or a concern that you would share and had shared almost from the outset of your involvement in the program.

THE WITNESS: Yes.

MR PERRY: And so you trained incompetent installers. That’s one reason why I took you to that email earlier where the participants said that a three-day course wouldn’t be a barrier and ACIMA wanted a five-day course. In the light of what you were being told on 8 May about what sort of courses were appropriate and necessary, in the light of your answer just then about the concern you had, was it not apparent to you from at least May if not earlier that the installers who were going to be in this program would not be adequately trained for the tasks that they were going to be required to do?

THE WITNESS: Yes, I was concerned about that.

MR PERRY: Yes. And, in particular, of course, because an awful lot of these installers were going to be new, untrained, unskilled and inexperienced people.

THE WITNESS: Yes.

MR PERRY: And you said to Mr Wilson that after Matthew’s death what you saw happening was that all the risks that you had identified previously were now coming to fruition ..... to use your word – emerging at one stage.

THE WITNESS: Yes, that’s what occurred.

MR PERRY: Yes. And part of those risks that you had been aware of since your first involvement in the program was just this one, namely, that installers should


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ensure that only trained and competent installers are allowed to enter a roof space. That is a concern you had throughout?

THE WITNESS: Yes.

MR PERRY: And were aware that that concern was not being met because the installers were not getting the training that the industry participants had recommended.

THE WITNESS: No, I don’t think that’s quite right. I think - - -

MR PERRY: Well, you tell me what your view about the adequacy of the training was if this reflected your view, this statement in this installer advice.

THE WITNESS: I think what – the situation with the training was that there were existing courses in states and territories prior to the 1 July phase 2 rollout and because of the fact that the government had announced immediate – or opening of the program effective immediately, we were faced with a situation of having to design the program training whilst the program was operating. And so there were two things at play. We were at – at once attempting to draw on what we could that was available already at the same time as identifying things that we could do for training of installers for the second phase.

And it was unfortunate because had there been an existing comprehensive unit or competency that we could require, then I think we would have asked them to do that, but that wasn’t the case and there was also a lot of – there was disagreement among industry players around the level of training that would be required, and I think a lot of them felt that they just wanted to get in and get started as soon as they could and they didn’t want to have to have additional requirements that they saw as burdensome placed on them. That said, at the same time, they were concerned that – that new entrants coming into the program wouldn’t have the experience that they had and, in addition to that, I was concerned that some of the people who were in the industry and were claiming to have the experience and the expertise actually didn’t and in the – one of the emails that you showed me before, there was a quote that I wrote about one of the installers who referred to his operation as a “smash and grab”.

MR PERRY: Yes, I saw that. That’s ..... - - -

THE WITNESS: And that really concerned me because it was clear that some of the installers who were in the industry already prior to the program weren’t necessarily complying with the Australian standard and the training requirements either.

COMMISSIONER: But just – the compromise in that 8 May meeting with all this acrimonious debate between installers was that a three-day training package was acceptable. Am I right in that?


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THE WITNESS: Well, that seems to be what I concluded from the consultation, yes.

MR PERRY: But that didn’t happen, did it?

THE WITNESS: It didn’t happen at the 8 May because - - -

MR PERRY: It didn’t happen ever, did it?

THE WITNESS: Well, it did happen because the – the CPSISC did develop training materials that were – that were available for the program. So - - -

MR PERRY: All right. But it was never mandated as being the requirement in the guidelines, was it?

THE WITNESS: I – I would need to see the guidelines to see what was mandated.

MR PERRY: All right. Accept that it wasn’t. All right. It was not mandated for installers to have a three-day training program. All that was mandated was the OH&S white card. Just accept that as a fact. That would rather tend - - -

MR O’DONOVAN: Sorry. There’s at least one additional requirement that was mandated that you – that he be – that a person be supervised by someone who had the competency so - - -

COMMISSIONER: Yes.

MR PERRY: Look, I’m talking about the content of training, not about supervision. Now, can we – this will go on for a long time if objections of this kind are taken when they have no substance.

COMMISSIONER: I think the question was whether it was mandated - - -

MR PERRY: I’m asking this witness about training.

COMMISSIONER: - - - and the answer is “no”.

MR PERRY: About training.

COMMISSIONER: Mandated training, and the answer is “no”.

MR PERRY: Yes. That’s what I’m talking about.

COMMISSIONER: The answer is “no” to mandated training.


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MR O’DONOVAN: What was put to the witness was about the content of the guidelines and the witness said he would like to see the content of the guidelines, and he was told to take counsel’s word for it - - -

COMMISSIONER: Yes.

MR O’DONOVAN: - - - about what was in them.

COMMISSIONER: No. He was told to take counsel’s word - - -

MR O’DONOVAN: And then he didn’t accurately state what they were.

COMMISSIONER: He was told to take counsel’s word that there was – they did not mandate training, I think.

MR PERRY: That’s right.

MR O’DONOVAN: Well, I thought that it went further – said that nothing else - - -

MR PERRY: No.

COMMISSIONER: All right. Well, we understand where we are.

MR PERRY: Yes.

COMMISSIONER: Go ahead, Mr Perry.

MR PERRY: Didn’t go anywhere near “further”. Mandated training for installers did not appear in the guidelines, other than the one day or the OH&S white card. So accept that for a moment. All right.

THE WITNESS: I – I - - -

MR PERRY: It would appear, if that’s right, that the participants’ view on 8 May did not find its way through to the guidelines. Can you tell me why that might be the case?

THE WITNESS: I don’t – I don’t know what considerations the PCG had in relation to the requirement or – or adding these additional requirements. All I know is that my role was to identify what – what options were available in terms of the – the training and – and to put those options to the decision-makers.

MR PERRY: Up the chain.



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MR PERRY: Can you please go to page 2953 in this set. This is a part of installer advice 12 which is shortly after 11. It’s 26 October. Just go down a bit, please. Keep going. Keep going. I’m just going to ask you about the information resource bit. Keep going. Right, here we go. Now, that refers to the construction industry pocketbook:

It’s now available on the website.

Do you see that?

THE WITNESS: Okay.

MR PERRY: Now, Mr Wilson took you to a part of that pocketbook, you know, the bit with the “don’t staple things” and the drawing of the person getting an electric shock in red.

THE WITNESS: Yes.

MR PERRY: Remember that bit?

THE WITNESS: Yes.

MR PERRY: Okay. Scroll down a bit further. Stop. Further to installer advisory 11 which is the one I took you to, the following electrical safety advice has been supplied by MEA. Was your – were you or the members of your team involved in the receipt of that advice and the forwarding of it?

THE WITNESS: Yes. I was involved in interactions with Master Electricians.

MR PERRY: Right. So do I take it that this installer advice number 12 contains within it information at least in part sourced from you or your section, namely, that which had been received from the MEA at about this time setting out these matters?

THE WITNESS: No, I don’t recall drafting this.

MR PERRY: No, that’s not what I asked you whether you drafted it. I asked you whether it contains information sourced from you. Is that right or not? Or can’t you recall?

THE WITNESS: I – I don’t know but from reading it, it looks like something that Master Electricians has written.

MR PERRY: Of course it is. It’s in quotes but it’s included in the installer advice. You told me that you were a person dealing with Master Electricians. That’s why I asked you was this information in this installer advice, for example, sourced from you or your team? Can you tell us?


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THE WITNESS: Well, I don’t know what you mean by “sourced”.

MR PERRY: “Provided”, “supplied”, “transmitted”, “communicated” or anything else you like, that it got from you into this installer advice.

THE WITNESS: I don’t know whether I provided this but I did not write it.

MR PERRY: Okay. Turn to your statement, will you, please. After Matthew Fuller’s death, can you – you said to Mr Wilson that not only did the risks that you had been concerned about for a long time now come to fruition – do you recall saying that to him?

THE WITNESS: Sorry, to who?

MR PERRY: You said to Mr Wilson here in front of me that by the time of Matthew Fuller’s death, what had occurred to you was that the risks that you had been concerned about for a long time - - -

THE WITNESS: Yes.

MR PERRY: - - - had now come to fruition.

THE WITNESS: Yes.

MR PERRY: Right. You also said to him that certain things were now back on the agenda consequent upon Matthew Fuller’s death. Do you recall saying that to Mr Wilson?

THE WITNESS: I recall that those things became – that there were discussions about electrical safety and that those discussions became more urgent and more people were involved, and there was a renewed sense of needing to do something about them.

MR PERRY: And is it the case – because you words were that things were back on the agenda – is it the case that what was back on the agenda was the notion of whether or not foil was an appropriate form of insulation to be installed in a particular method, namely stapling it down with metal staples? Did that come – quote – “back on the agency” – close quote, to use your words?

THE WITNESS: Well, I don’t – I don’t agree with your paraphrasing my use of the phrase “back on the agenda”.

MR PERRY: Well, what did come back on the agenda? Because they’re the words you used.

THE WITNESS: Well, I don’t – I don’t know what you’re asking me now.


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MR PERRY: Right. Thank you. Now, in terms of your statement, go to paragraph 59. Have you read that paragraph?

THE WITNESS: Yes.

MR PERRY: See there reference to Australian standards? Were you familiar what Australian standards applied to each type of insulation? Did you research it?

THE WITNESS: I don’t recall if there were Australian standards that applied to different insulation types.

MR PERRY: Right. CPS.002.001.2920. You read this booklet, didn’t you?

THE WITNESS: Yes.

MR PERRY: Right. Go to page 6, please. A little bit further. Just scroll back. Keep going backwards. Right. The booklet handily gave you the Australian standards related to insulation so if you weren’t aware prior to this booklet, if you had read the booklet, I take it you became aware when you read it.

THE WITNESS: Well, I was aware that there were Australian standards for - - -

MR PERRY: Right.

THE WITNESS: - - - insulation but your question - - -

MR PERRY: Scroll down. You see it actually describes the content of them. You see?

THE WITNESS: Okay.

MR PERRY: So when you read this thing, you would have been aware of the content of the relevant Australian standards related to insulation, wouldn’t you?

THE WITNESS: I was aware of the content of the Australian standards before this booklet was produced.

MR PERRY: Right. Good. Keep going. Keep going. Bit further. Keep going. Look, reflective foils. And down. This booklet sets out two standards that concerned reflective foils. If you were aware of these standards prior to reading the booklet, I take it you were aware of these two standards insofar as RFLs were concerned.

THE WITNESS: I didn’t have a good understanding of them. I wasn’t a - - -

MR PERRY: Okay. But when you read the booklet, you would have because, look, it sets it out in fairly detailed terms, doesn’t it? Nice summary.


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THE WITNESS: Well, I wasn’t an insulation technical expert - - -

MR PERRY: That’s not what I asked you.

THE WITNESS: - - - so I didn’t have a good understanding.

MR PERRY: You would have understood these words set out in the CPSISC booklet, surely.

THE WITNESS: Well, I understood that there were standards but if your question is did I understand the details of the standards, the answer is “no”.

MR PERRY: Well the question is, having read this booklet that you told us you did, you would have understood the standards relevant to reflective foils and how such foils were to be used, wouldn’t you?

THE WITNESS: No, because I’m not an insulation technical experts.

MR PERRY: Right. Read those two boxes under reflective foils. Read that to yourself, because that’s what you – I gather you would have done when you read the booklet.

THE WITNESS: Yes.

MR PERRY: You would understand from the relevant simple language set out there that the two standards referred to relate, one, to the use of foil as sarking – that’s the top one - - -

THE WITNESS: Yes.

MR PERRY: - - - and you know that sarking is stuff that goes underneath the roof itself.

THE WITNESS: Yes.

MR PERRY: Right. And the second one is use in walls.

THE WITNESS: Okay.

MR PERRY: You understood that when you read the booklet.

THE WITNESS: Well, no, I can’t recall what I understood at the time.

MR PERRY: Having read the booklet now and, as you tell us, having read it when it came out, you would have understood when you read it that the standards seem to relate to two methods of use of foil insulation, sarking or in the walls, surely.


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THE WITNESS: Well, I would have understood it if I read that at the time, yes.

MR PERRY: Well, you told us you did read the booklet so I’m assuming when you said that, it means you read this as well.

THE WITNESS: Well, it’s a 122 pages so had I read that, yes, I would have understood it.

MR PERRY: Now, that’s not rolling foil out over the joists, is it – either of these two, when you read it now?

THE WITNESS: Well, I don’t know because I’m not an insulation technical expert.

MR PERRY: Right. You were in the technical team, weren’t you?

THE WITNESS: No. I was a policy officer.

MR PERRY: In the technical team?

THE WITNESS: In the Department of Environment.

MR PERRY: What sub-team were you in? Technical team?

THE WITNESS: No, that’s not the name of the team.

MR PERRY: A policy officer. As part of a policy remit did you acquaint yourself with the various types of insulation that this program was involved with or not?

THE WITNESS: I sought to receive advice from experts in the field.

MR PERRY: What I asked you was did you acquaint yourself with the various types of insulation that this program was going to ..... ?

THE WITNESS: At a high level but I did not attempt to become a technical expert.

MR PERRY: Did you acquaint yourself with whether there were particular risks relevant to any one type of insulation?

THE WITNESS: No, I did not because we sought advice on that.

MR PERRY: And the advice that Mr Wilson took you to from Mr Ruz, you were not ever made aware of that? That is, the 18 February meeting or the 19 February email.

THE WITNESS: Well, I would need to see those emails.

MR PERRY: You have.


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THE WITNESS: Well, I - - -

MR PERRY: The 19 February email, Mr Wilson took you to yesterday.

THE WITNESS: Well, you would need to bring that back for me.

MR PERRY: It’s the one from Mr Ruz to Ms Brunoro which sets out in terms the method of electrocution of Matthew Fuller eight months later. Do you not remember it from yesterday?

THE WITNESS: I would need to see the email again.

MR PERRY: All right.

THE WITNESS: There has been a lot of emails.

MR PERRY: Could I ask ..... We will go first to the minute which is AGS.002.023.0926. It’s the 18 February minute, a meeting which the attendances shows, I think, you’re at. We will go to this one. Scroll down. You recall Mr Wilson taking you to these minutes? Keep going. Bit far, my mistake. Up. Keep going up, I think. It’s agenda item 3. Scroll down, my mistake. Thank you. Bit further. Stop. You see the fourth dot point, last two sentences?

THE WITNESS: Okay.

MR PERRY: You took advice, you say. Do you recall that advice from Mr Ruz?

THE WITNESS: I recall that issue being raised at the time, yes.

MR PERRY: At 18 February?

THE WITNESS: No, I don’t recall – have specific recollection of 18 February.

MR PERRY: When you say “at the time”, this is the minutes of 18 February. If not that day, then this issue was raised at about that time. Is that what you’re saying?

THE WITNESS: Well, I don’t know. I can’t recall that but - - -

MR PERRY: Well, your words were “I recall the issue being raised at the time”. What is the time that you refer to?

THE WITNESS: I can’t recall the specifics of when it was first raised?

MR PERRY: Right. AGS.002.017.1602. Second paragraph, “I would also like”. Do you recall Mr Wilson taking you to this yesterday?

THE WITNESS: Yes.


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MR PERRY: Right. Last sentence. The issue that you recall being raised at the time was one of electrocution of installers and something happening in New Zealand. That’s right, isn’t it?

THE WITNESS: Sorry, can you repeat the question?

MR PERRY: The issue – you told me before that you recall the issue being raised at the time. The issue that you refer you in that answer, is that which is described in the minutes of the meeting I just took you to and this email, namely electrocution of an installer in a particular way which occurred in New Zealand?

THE WITNESS: I became aware of those issues but I wasn’t on this email. Our practice at the time was to pass information, so there’s every chance that I would have become aware of it at the time but I recall specifically when I first became aware of it.

MR PERRY: Prior to 1 July rollout which is five months later – four and a half months?

THE WITNESS: Yes.

MR PERRY: Right. So prior to the 1 July rollout, what you had become of is that in New Zealand people have died doing particular things. Correct?

THE WITNESS: Yes.

MR PERRY: Right. And the particular things that they died doing are those set in this email right in front of you, namely stapling reflective products to roof timbers in a retrofit.

THE WITNESS: Yes.

MR PERRY: Right. Now, if you became aware of that having occurred in New Zealand prior to 1 July, what did you do about that when you became aware of it?

THE WITNESS: I gathered the information, passed it to my superiors.

MR PERRY: Right. And who did you pass it to?

THE WITNESS: To the people in my chain of command in the Department.

MR PERRY: And they would be immediately above you. Firstly, your team leader?

THE WITNESS: Yes.

MR PERRY: Riordan up until about April or something, isn’t it?


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THE WITNESS: Yes.

MR PERRY: And then Ms Belcor after that.

THE WITNESS: Yes.

MR PERRY: Right. So when you became aware of this you raised with them, again, another concern that you have in – but in particular, the concern being that encapsulated in this email.

THE WITNESS: No. This email was not sent to me.

MR PERRY: The information which is encapsulated in this email is what I said to you.

THE WITNESS: No, I don’t know specifically when this information came to me - - -

MR PERRY: Well, we do know from your answer that it was prior to 1 July because you just told us. All I asked you was when you became aware of this issue – and you’ve also agreed, as I understand it, that the issue we’re talking about is that which is encapsulated in Mr Ruz’s email – you raised it with the people above you. That would be Riordan if it occurred before April when she left, or Belcor after that. Now, that’s the sequence of events, isn’t it?

THE WITNESS: Well, I can’t tell you specifically when I passed it to – to someone and what I passed but I can tell you that our practice at the time was to pass information and my role was to gather the information, assess different options and provide it to the decision makers.

MR PERRY: Thank you. When you became aware, then, of this information what options did you consider?

THE WITNESS: I can’t recall specifically becoming aware of this information.

MR PERRY: Right. Thank you. Now, you told me earlier that one of the concerns you had is that installers or installer companies might not obey Australian standards, might not obey the guidelines, it might not even obey the OH&S laws. That’s a concern that you had.

THE WITNESS: Yes.

MR PERRY: Go, then, to 52.

COURT OFFICER: Is that paragraph .....


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MR PERRY: 52 of his statement. Yes, sorry. Read that. Now this seems, by reference to 51, to be in the context or at least at the time of this meeting on 3 April. That puts the timeframe. Okay?

THE WITNESS: I don’t see 3 April mentioned there.

MR PERRY: Well, look at the top line, right above paragraph 52, which is why I referred you to paragraph 51.

THE WITNESS: Well, I can’t see - - -

MR PERRY: Scroll down a bit. Well, you can see the date, 3 April, right above it.

THE WITNESS: I can see that that refers - - -

MR PERRY: Now, 51 is the annexure J, held on 3 April. Then 52 rolls in, “Requirements designed” etcetera. So I am assuming – but tell me if I’m wrong – that that which is in 52 is connected with the discussion referred to at the meeting which is the subject of annexure J and which is held on 3 April. Is that right?

THE WITNESS: I don’t know that because I can’t see the annexure.

MR PERRY: Right. Now, in 52 – you can’t see the annexure. Your own statement describes what it is but never mind. In 52, you say this – about third last – fourth last line:

We assessed that compliance with the program requirements would be a key issue.

Now, bearing in mind the concern about disobedience to a whole raft of requirements, obligations or written documents, and bearing in mind your statement that compliance with those sorts of things is a key issue, what was done to marry those two? You’re concerned that people would actually disregard requirements and obligations and guidelines, etcetera, and the fact that compliance is a key issue. What was done to meet the tension between those two concepts?

THE WITNESS: I recall that the Department was attempting or proceeding to establish the capability to inspect homes or roof spaces but my recollection was that the compliance ability or the capability that the Department had was not at a high enough level.

MR PERRY: Well we know, for example, that PwC didn’t get appointed until 29 September 2009 and they were the people who were going to be the compliance managers. All right? So if it was a key issue on or about 3 April, and if you’re aware that the Department – due to the timeline – was struggling to have any compliance regime in place as at 1 July, was it your concern really, Mr Kimber, that


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a 1 July start date meant that this program was commencing without sufficient training and without a sufficient compliance regime?

THE WITNESS: I was concerned about both those things.[12.30 pm]

MR PERRY: And it was your view – bearing in mind your knowledge of the state of the training decisions and the compliance regime – that this program, if it had to commence on 1 July, was effectively commencing without proper attention being given to either or both of those two concepts.

THE WITNESS: It wasn’t my role to make a decision about that.

MR PERRY: That’s not what I asked you. I asked you what your concern was, your view.

THE WITNESS: And my view were that there were risks in the program that would be elevated once the main phase commenced.

MR PERRY: That’s 1 July – commenced.

THE WITNESS: Yes.

MR PERRY: And that those risks were elevated because the training regime did not include installers personally? The mandatory training regime. That’s right, isn’t it?

THE WITNESS: No. I don’t know what you mean by that.

MR PERRY: Right. And those risks were elevated because the compliance regime which was a key issue, apparently, was not in place on and from 1 July.

THE WITNESS: There – elements of a compliance regime were in place and it wasn’t my area of responsibility but I was concerned that the capability that existed was not sufficient.

MR PERRY: And by “not sufficient”, you mean that could result in there being an unsafe work environment for people going up into the roof.

THE WITNESS: Well, I don’t think the compliance would have - - -

MR PERRY: Helped that.

MR PERRY: - - - helped that because it was retrospective.

MR PERRY: Yes. Thank you. So in terms of – remember installer advice number 11 I took you to and you agreed with the notion that installers had to insure that only properly training people went up into a roof space? You remember you agreed with that concept?


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THE WITNESS: I – I remember that that was requirement or that was a concept under the occupational health and safety requirements that installers had to comply with in the states and territories, that – that employers had a – had a duty of care for their employees.

MR PERRY: But as you said quite properly, you also of course had a real concern that people would just disregard those obligations and requirements.

THE WITNESS: Yes, I did.

MR PERRY: Yes. And that means, does it not, that you had a concern – a real concern that when this thing started on 1 July, it just wasn’t ready to go in terms of training and/or in terms of compliance.

THE WITNESS: Yes.

MR PERRY: Did you express that up the chain?

THE WITNESS: Yes.

COMMISSIONER: Thank you, Mr Windsor.

<EXAMINATION BY MR WINDSOR [12.32 pm]

MR WINDSOR: Thank you, Commissioner. Mr Kimber, my name is Windsor, I appear on behalf of some entities that were involved in the home insulation industry prior to the HIP. Could I ask that the witness be shown AGS.002.029.0929. Do you have that in front of you? Could you please read down to the end of the bullet points there on the page that appears in front of you. Have you read that?

THE WITNESS: Yes.

MR WINDSOR: Do you recall a Mr Tony Marker?

THE WITNESS: I do, yes.

MR WINDSOR: From Pitt & Sherry.

THE WITNESS: Yes.

MR WINDSOR: What was his job or what was he doing?

THE WITNESS: Well, as I was saying earlier, Mr Marker was someone who had been involved in the Department’s work in developing advice for households on different ways that they could reduce energy consumption.

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MR WINDSOR: And did you receive a report from either Mr Marker or Pitt & Sherry in relation to that matter – that subject matter?

THE WITNESS: The previous subject matter or this subject matter?

MR WINDSOR: This subject matter.

THE WITNESS: I don’t recall if we received a report from Tony about this subject matter. MR WINDSOR: All right. If I could put that document aside. Could I ask that the witness be shown QPIC.006.001.3519. Mr Kimber, these are the minutes of a meeting of 8 May. You’ve given some evidence about that meeting. You see that you were an attendee at the meeting. Do you recall the meeting?

THE WITNESS: No, I don’t have specific recollection of it.

MR WINDSOR: All right. In the first instance, you will see that you did attend or at least the minutes record that.

THE WITNESS: Okay.

MR WINDSOR: Could I ask you to go to agenda item 2. Just read that to yourself, please. You will see the reference there in the second paragraph of agenda item 2 to installer registration and capability. Do you recall on 8 May having some discussions with industry representatives about industry or installer registration and capability.

THE WITNESS: If you can show me a document that refers to that meeting then I might be able to recall. MR WINDSOR: Well, we have this document in front of us. Does that document assist you at all?

THE WITNESS: Well, this is the PCG meeting on 8 May.

MR WINDSOR: Yes.

THE WITNESS: You’re asking me about an industry meeting on the same day. MR WINDSOR: Yes. Did you have any discussions with industry representatives on that day?

THE WITNESS: Well, if you can show me a document that relates to an industry meeting on that day, I might be able to recall.


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MR WINDSOR: Right. Let me move through it this way. First of all, in early May 2009 did you meet with industry representatives?

THE WITNESS: I can’t recall specific meetings. MR WINDSOR: Did you, in early May of 2009, meet with a person by the name of Kevin Herbert?

THE WITNESS: I recall Mr Herbert, yes, but I don’t recall specific meetings with him.

MR WINDSOR: Do you recall meeting with a Mr Hannam – H-a-n-n-a-m?

THE WITNESS: I recall both those people came to the industry meetings.

MR WINDSOR: And do you recall the subject matters that either of those gentlemen raised with you at industry meetings in the first half of 2009?

THE WITNESS: No. I would need to refer to the documents.

MR WINDSOR: Do you recall whether at industry meetings in the first half of 2009, industry representatives told you of their concern regarding the risk to installers?

THE WITNESS: I recall that we became aware and that some industry representatives were raising concerns, yes. MR WINDSOR: They were raising concerns regarding the risk of injury to installers; is that correct?

THE WITNESS: Well, if you have documents of the meetings I will be able to recall that but I can’t recall specifics.

MR WINDSOR: Do you recall whether at a meeting, any meeting, with an industry representative in the first half of 2009 an industry representative informed you of his concern regarding injuries to installers in the event that the program went ahead in phase 2?

THE WITNESS: I don’t recall that, no. MR WINDSOR: Do you recall an industry representative saying anything to you at an industry meeting in the first half of 2009 of the possibility of installers dying in the course of installation of insulation in domestic premises?

THE WITNESS: No, I do not.


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MR WINDSOR: But you, as I understand your evidence to date, that is yesterday and today, were of the view by May – at least by May of 2009 that there was a risk of injury to installers under the program.

THE WITNESS: Yes.

MR WINDSOR: And there was a risk to installers in that installers may be killed as part of the program if it went ahead without sufficient training for the installers. THE WITNESS: Yes, the 3 April minutes refer to that.

MR WINDSOR: And was it the situation that you had that view in April of 2009?

THE WITNESS: The 3 April minutes refer to that, yes. MR WINDSOR: And that was an awareness of injury to installers and death to installers.

THE WITNESS: Yes.

MR WINDSOR: Thank you. Now, do you recall anything other than what you’ve been shown appearing in the minutes of 18 February 2009? You’ve been taken to the minutes by Mr Wilson and Mr Perry.

THE WITNESS: Well, I don’t know what you’re asking me.

MR WINDSOR: You’ve read the minutes of 18 February 2009 meeting?

THE WITNESS: Well, I don’t recall. I mean, if you bring them back I might be able to recall.

MR WINDSOR: Before getting into the witness box, did you read your statement?

THE WITNESS: Yes, I wrote the statement.

MR WINDSOR: Did you read it overnight?

THE WITNESS: Yes. MR WINDSOR: Did you read the annexures to the statement/

THE WITNESS: Yes.

MR WINDSOR: Did you read them carefully?

THE WITNESS: Yes.


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MR WINDSOR: Did you have the opportunity to refresh your memory as to the content of the statement and the annexures to the statement?

THE WITNESS: Yes.

MR WINDSOR: So you would have read annexure L to your statement which is AGS.002.003 – I’m sorry, 002.023.0926. Is the answer to my question yes or no?

THE WITNESS: Well, I have the document in front of me.

MR WINDSOR: Yes. Now, did you read it for the purposes of preparing to give your evidence in court yesterday and today?

THE WITNESS: I don’t recall if I read it specifically.

MR WINDSOR: Would you like to go to the document which is the next document in your statement which is also annexure L but this number is ABC.002.001.0235. Have you got that document in front of you?

THE WITNESS: Yes, I do. MR WINDSOR: Now, there’s a document that you’ve annexed to your statement prior to giving evidence before the Commissioner, did you refresh your memory by reading that statement?

THE WITNESS: I can’t recall.

MR WINDSOR: Is the Commissioner to understand, Mr Kimber, that you did or did not read your statement and the annexures to your statement prior to giving evidence before the Commissioner?

THE WITNESS: I have read those documents, yes. MR WINDSOR: And did you read them overnight?

THE WITNESS: You mean last night?

MR WINDSOR: Yes.

THE WITNESS: I can’t recall if I read this document last night?

MR WINDSOR: And what about yesterday or the day before yesterday?

THE WITNESS: I can’t recall when I read this document.

MR WINDSOR: Well, let’s just stay with the document that you’ve got in front of you. That is the 20 March 2009 document. Do you see that?


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THE WITNESS: Yes.

MR WINDSOR: Now that’s the meeting that occurred on that date.

THE WITNESS: Okay. MR WINDSOR: Are you able to tell the Commissioner whether you had any recollection of that meeting over and above the information that’s continued in the minutes which you had attached to your statement?

THE WITNESS: Can you be more specific.

MR WINDSOR: What occurred at the meeting on 20 March 2009 being the insulation industry consultation meeting? Do you have an independent recollection, Mr Kimber?

THE WITNESS: Yes. If you can be more specific about what exactly you would like to know.

MR WINDSOR: Mr Kimber, do you recall whether at that meeting Mr Hannam spoke up? That is, he said something during the meeting?

THE WITNESS: I can’t recall but if it – if it was – if he did say something, it may be recorded in the minutes.

MR WINDSOR: Do you recall whether any industry representative may have said at the meeting on 20 March 2009 words to the following effect:

If the government does not properly train installers there will likely be injuries or possibly deaths.

THE WITNESS: I don’t recall that.

MR WINDSOR: What that, however, your independent view at that time?

THE WITNESS: No, because the statement that you just relayed indicates that if the government provide training, that somehow there wouldn’t be deaths and I don’t agree with that.

MR WINDSOR: Do you recall in early May you attended a meeting at which Mr Hannam and Mr Herbert attended at which there was further discussion about the proposed HIP which was to take effect on 1 July?

THE WITNESS: Sorry, which date?

MR WINDSOR: In early May of 2009.


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THE WITNESS: Do you have a document that refers to the meeting that could help me refresh my memory?

MR WINDSOR: Perhaps if you go to AGS.002.040.0396. If you would like to spend a moment just refreshing your memory there, please.

THE WITNESS: Okay.

MR WINDSOR: Have you read that, Mr Kimber?

THE WITNESS: Yes.

MR WINDSOR: Do you recall whether you were at that meeting?

THE WITNESS: I don’t recall but there would be an attendance list.

MR WINDSOR: Do you recall whether, as at that date or about that date of that meeting, it was your view that this HIP was about getting people into work?

THE WITNESS: My understanding was that it was part of the economic stimulus program that the government was embarking on.

MR WINDSOR: All right. And it was all about – and that program, as you understood it, was all about jobs for people?

THE WITNESS: It was about the objectives of the economic stimulus plan.

MR WINDSOR: Including about jobs for people.

THE WITNESS: That was one of the elements.

MR WINDSOR: All right. And it was your concern at that time and about that time – 8 May – that installers could be injured.

THE WITNESS: Yes.

MR WINDSOR: Correct?

THE WITNESS: Yes.

MR WINDSOR: Installers could die in the process of installing in roof spaces?

THE WITNESS: Yes.

MR WINDSOR: And it was also a concern of yours at that time – that is, at and about 8 May 2009 – that there could be fires in houses which had had insulation installed in those houses?


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THE WITNESS: Yes.

MR WINDSOR: And I want to put it to you that during the course of that meeting, one of the participants said to you – but he was referring, perhaps, to the Commonwealth – “you’re going to kill people” and that you said in response, “It’s all about jobs. We expect there may be injuries.” And you further said, “We expect that houses will burn down.” Do you recall that conversation?

THE WITNESS: I did not say that.

MR WINDSOR: I want to suggest to you that you did say that at that time.

THE WITNESS: I did not say that.

MR WINDSOR: Well, are you telling the Commissioner that you have an independent recollection of this meeting, do you? That is, the meeting that happened on 8 May 2009 and the meeting that’s recorded on the screen immediately in front of you, in the meeting that you’ve just read the minutes of.

THE WITNESS: I did not say that because it’s an incorrect statement and I would not have said an incorrect statement.

MR WINDSOR: Well, your understanding at the time was, as I understand your evidence, one, the program – economic stimulus program was about jobs. You’ve agreed with that proposition, haven’t you not?

THE WITNESS: I’ve agreed with that and I’ve also - - -

MR WINDSOR: Yes, and you’ve also agreed with the proposition that there could be – or you had a concern about injuries.

THE WITNESS: Yes.

MR WINDSOR: You had a concern about deaths in the installation – to installers.

THE WITNESS: Yes, and the 3 February - - -

MR WINDSOR: And you also had a concern about fires in houses in which installation had been installed. Do you agree with that?

THE WITNESS: Yes, and - - -

MR WINDSOR: Thank you.

THE WITNESS: - - - the 3 February 2009 media release indicated that the government had objectives to also save energy in households and that it indicated that there were a range of benefits to installing insulation in the ceiling. So whilst the


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job element was important, it wasn’t the only factor in the government’s decision to implement the program.

MR WINDSOR: All right. Thank you. Just a couple of other things, Mr Kimber. The meeting on 18 February – you’ve looked at the minutes, you’ve got them attached to your statement. Do you recall Mr Wilson – not this Mr Wilson but Mr Wilson from the PM&C being present at that meeting?

THE WITNESS: Well, no.

MR WINDSOR: Do you recall what, if anything, was said by any person from PM&C during the course of that meeting on 18 February?

THE WITNESS: No, but if you can bring the minutes back, there might be information in there about that issue.

MR WINDSOR: Do you recall – if we could just go back quickly to ABC.002.001.0234 – 0235.

COMMISSIONER: The minutes are in early in your statement, if you want them.

MR WINDSOR: This is annexure L to your statement, Mr Kimber. Mr Kimber, I want to ask you just a few questions and this is the final subject matter. You recall that Mr Garrett was at that meeting?

THE WITNESS: This is 18 February meeting?

MR WINDSOR: No, this is – I’m sorry. This is the 20 March meeting. It’s the one up on the screen.

THE WITNESS: Well, can you scroll down to the attendance list?

MR WINDSOR: Please, if you could go.

COMMISSIONER: If you wanted the 20 March, it’s behind the red page in the – in exhibit L, there.

MR WINDSOR: See the meeting at 10.30 is at the top there – Mr Garrett, Mr Levey?

THE WITNESS: Okay.

MR WINDSOR: Right. Now that I have reminded you of that detail, do you recall Mr Garrett’s attendance on that date at that meeting?

THE WITNESS: I don’t have specific recollection of Mr Garrett.


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MR WINDSOR: Can the Commissioner therefore take it that you have no specific recollection of what, if anything, Mr Garrett said to the participants when he attended on that meeting on that date?


MR WINDSOR: Thank you, Commissioner.

COMMISSIONER: Thank you. Yes, Mr Keim.

<EXAMINATION BY MR KEIM [12.52 pm]

MR KEIM: Thank you, Commissioner. I would like to take you to annexure D, Mr Kimber, to your statement. My name is Stephen Keim. I appear for the family of Mitchell Sweeney who died on 4 February 2010. This is the - the reference is CPS.002.001.0179. Thank you. I just wanted to ask you one specific question about this. You can see that that’s the email that you sent to Ms McEwan and you asked her for some comments on the minimum training standards that you had put together at that stage; you recall that?

THE WITNESS: Yes. MR KEIM: And I just wanted to ask you about something on the very bottom of the page where there was a talk about recognition of prior learning or RPL; are you familiar with that concept?

THE WITNESS: Yes. MR KEIM: And see there is a reference to six months continuous work experience deemed a proper basis for qualification on that basis. Be an individual that has had six months continuous work experience. THE WITNESS: Okay.

MR KEIM: Yes. And it’s just that at least by 8 May that became two years. I will take you to a document to show that. AGS.002.012.1235 which is a draft of the installer guidelines, I think, after 8 May – perhaps even as it issued on 1 June. 012.1235. So you remember the six months there, and we will just have a look at two years. And my question is going to be do you have any recollection as to who provided the advice or how it came about that that change occurred. Now, this also is right down the bottom of the page. It’s number 4, I think. See section 4, Prior Industry Experience? It’s a little bit more detailed. Be an individual who has, as the result of relevant work experience over significant period of time, at least two years. So you understand my question? These are documents that eventually were decided

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in their terms by the PCG but they were a document that you worked on at the beginning. We saw the one that you sent off to Ms McEwan.

THE WITNESS: Yes.

MR KEIM: And the requirement has become more strict with regard to prior learning, that is, two years rather than six months. Do you know who was giving the input for that change?

THE WITNESS: I don’t recall the specifics of who gave the input to that change.

MR KEIM: Okay. It’s a fairly significant change and it might be said that as other requirements were going in the direction towards an easier qualification, this is going to a more strict qualification. That would seem to be fairly significant. Do you remember any input?

THE WITNESS: I’m sorry but I don’t remember the reasoning or the input to this particular change.

MR KEIM: Okay. And just perhaps to complete the question, it didn’t seem to come from Ms McEwan because you’ve already seen today – you remember that your email came back with her comments interlined between the various bits of it. Do you remember seeing that? I will take you to it. It’s CTS.002.001.0027. Do you remember you did get a response from Ms McEwan?

THE WITNESS: Well, if you can show me the document.

COMMISSIONER: Mr Keim, we haven’t focused on that particularly interesting thing but I think it’s arguable that it actually dilutes the standard if you just read both of them.

MR KEIM: Sorry.

COMMISSIONER: No, I’m not saying that’s the only interpretation but I think it’s arguable and it seems to be consistent with what has been happening as well. MR KEIM: The two years and over 10 years, Commissioner?

COMMISSIONER: No, no, the two years and the six months. Where there primary occupation was installing ceiling insulation and it doesn’t say that in the latter one.

MR KEIM: Yes.

COMMISSIONER: And be able to safely and effectively install the insulation products which is pretty strict, in fact, but it’s – it took that one out too.


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MR KEIM: I take your point, Commissioner. It may be just numbers. So, Mr Kimber, this is the document that comes back to you from Ms Sydney and Ms McEwan, and I think it’s Ms McEwan’s comments or it might be both their comments. Again, if we go down to the bottom of this page, you see there in italics you can the six months continuous work in the last 10 years. That is what was in your original document and then you can see something in italics under that which is your request to Melissa to make comment and then in non-italics under that are the words:

This could include completion of a self-assessment as a form of identifying required evidence of competence because we have a matter ..... except to vote.

It doesn’t say anything about changing the six months; you see that?

THE WITNESS: Okay.

MR KEIM: You accept that that’s what the words say?

THE WITNESS: Well, I don’t have specific recollection of the change. I can see that what was attempting to do here was to get advice from the experts.

MR KEIM: But my point is it doesn’t seem to have come from the Department of Employment, at least in the first instance, the suggestion for change. Is that right?

THE WITNESS: Well – no, I don’t know what previous discussions I had had with Kristen and Melissa at this stage.

MR KEIM: Okay. But you don’t know where the suggestions for the change in wording came from?

THE WITNESS: No, I don’t, I’m sorry.

MR KEIM: That’s fine. Perhaps if we could go back to AGS.002.012.1235 which was the installer guidelines. And this is a topic that my learned friend Mr Perry canvassed with you. Now, the way in which that is worded is that if you look at 2B a person who’s an installer as opposed to a supervisor, if you look at 2B – or if you look at 1 and 2B, an installer can have the occupation health and safety training, which is the basis training and be supervised and not have any additional training. Do you see that? Do you understand what those words mean?

[1.00 pm]THE WITNESS: Yes.

MR KEIM: Okay. And you can take it from me, because you’ve been taken to – you can take it from me that that change of only requiring that an installer be supervised and not have their own qualifications apart from the basis OHS that what formalised, at least in the PGC meeting of 8 May.


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THE WITNESS: I don’t know if it was or not.

MR KEIM: Okay. Well, just accept that for the moment. You’ve already been taken today by my learned friend Mr Perry, to the training consultation that you were conducting yourself also on 8 May which you then sent to Mr Keefe, I think in email. You remember that summary where the industry people were saying three or five years training is not a barrier to entry. Do you remember that discussion you had with my learned friend Mr Perry?

THE WITNESS: Yes.

MR KEIM: And the question that I think a number of people have been asking you with regard to that is do you have any idea why, on the one hand, while industry was saying to you training is a good thing, it won’t hold up the program, it’s not a barrier to you entry, and the powers that be at the PGC seem to be going the other direction in taking away a requirement for training from installers themselves. Do you have any insight or inkling as to why those two quite disjunctive events were taking place on the same day?

THE WITNESS: I probably can’t add much more than what I’ve already said other than to observe that there wasn’t necessarily a common view among industry as to what training would be required or should be required.

MR KEIM: No. But we’ve seen the range of views recorded by you in that document that you sent to Mr Keefe.

THE WITNESS: That’s right. There was a range of views from industry.

MR KEIM: Will all seemed to support at least a significant amount of training for everybody – for every installer.

THE WITNESS: Well, I think on the one hand, certain industry representatives were concerned about having training for themselves and particular for new entrants and on the other, they were also very concerned about making sure that they could participate as effectively and quickly as they could. MR KEIM: Right. And I want you to be very careful about this, do you have any specific recollection of any input that you received from anyone in industry that said well, let installers just have the basis OH&S and nothing else. You were never told that by anybody, were you?

THE WITNESS: No.

MR KEIM: Is that a convenient time - - -

COMMISSIONER: Is that a convenient time, Mr Keim?


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MR KEIM: Yes, thank you, Commissioner.

COMMISSIONER: 2.15.

MR WILSON: Commissioner, before you rise, I would just inform those present that we’re going to interpose Mr D’Arcy who’s giving evidence by videoconference at 2.15.

COMMISSIONER: At 2.15?

MR WILSON: Yes.

COMMISSIONER: All right. Thank you.

<THE WITNESS WITHDREW

ADJOURNED [1.03 pm]

RESUMED [2.16 pm]

COMMISSIONER: Ladies and gentlemen, tomorrow, unless anyone has any objection, we will sit from 9.30 until 1 and then from 1.30 till 3. That’s a half hour break for lunch. Any problem with that? Okay. Thank you. Call the next witness.

MR HORTON: I call Mr Dennis D’Arcy, Commissioner.

<DENNIS D'ARCY, SWORN [2.17 pm]

<EXAMINATION-IN-CHIEF BY MR HORTON [2.17 pm]

MR HORTON: You’re Dennis D’Arcy, is that correct?

THE WITNESS: Yes, that’s correct.

MR HORTON: And you prepared a statement dated 7 March 2014 for the Commission.

THE WITNESS: That’s correct.

MR HORTON: Now, you’re presently the CEO of ICANZ?

10.4.14 P-2659 D. D'ARCY XN©Commonwealth of Australia MR HORTON

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MR HORTON: And been so for, what, 10 years or so?

THE WITNESS: That’s pretty close. MR HORTON: And just explain briefly, would you the role and function of ICANZ as at 2009.

THE WITNESS: I think that’s pretty much summarised in 1.1 that we represent the interests of the manufacturers of glass wool and rock wool insulation and that we provide information to both the building industry and the government and the consumers from time to time on the benefits of insulation in terms of energy, greenhouse gas abatement, comfort, etcetera, and we put proposals to government from time to time whether they be state or federal as to how insulation can fit in with their energy policies that they may be considering.

MR HORTON: Now, you say, I think you’ve got members that manufacture foil insulation but your body doesn’t represent foil insulation interests directly?

THE WITNESS: That is correct. ICANZ does not represent the manufacturers of foil insulation.

MR HORTON: Yes. You say at paragraph 2.9 of your statement – the reference there to that operator, it’s SGA.001.001.0001.

THE WITNESS: Yes. Are we talking 2.9?

MR HORTON: 2.9, yes.

THE WITNESS: yes. MR HORTON: And you were saying:

From the outset, ICANZ recommended against the use of foil insulation.

THE WITNESS: That’s correct. MR HORTON: And for whom did it make those recommendations?

THE WITNESS: To whom?

MR HORTON: Yes.

THE WITNESS: Sorry. I didn’t quite catch that. To whom?

MR HORTON: Yes.


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THE WITNESS: To various bureaucrats that we met during the formation of the scheme. We – our view was that foil insulation has many good uses but in the seventy years that we had been manufacturing foil, we had never recommended it for use across ceilings really for two reasons: that it’s very difficult to install and guarantee the effectiveness of the product; and secondly the safety concerns we raised at that time were that it concealed ceiling joists so that any other trade or person getting up into the ceiling was at higher risk of, if you like, putting their foot in the wrong spot and there was more of a risk of accident or injury by slipping or putting their foot through the ceiling. We just didn’t think that was the appropriate product for ceiling insulation.

MR HORTON: And had you had – or your members had experience of a kind that you’ve just mentioned?

THE WITNESS: Well, we didn’t recommend it for that use. I can’t say I can point to any particular instance but it just made – certainly from achieving the right energy efficiency levels, we didn’t believe that the numbers we worked out we could guarantee that those performances would be achieved over the long term and secondly just any – commonsense getting up into a ceiling if you cover all the timber members that would support you if you’re trying to walk around up there to do some maintenance or check anything out, if you’ve covered all those up, it just made it a more difficult environment to operate in. MR HORTON: Yes. It would also conceal, wouldn’t it, cables and wires running across ceiling joists while you were installing the foil. THE WITNESS: It was but we are talking here day 1 of the program where we made our feelings known about the use of the foil. At that point in time, we were unaware on day 1 of any electrocutions that had occurred in New Zealand – well, I was unaware anyway, and to my knowledge, there was none of those accidents had happened in the history of the insulation industry that I knew of for many, many years. So that wasn’t something that immediately sprang to mind as a risk and the fact that we didn’t recommend it as being used there, it had never come up as a risk.

MR HORTON: Yes. Now, you mentioned you made these recommendations at an early stage.

THE WITNESS: Yes.

MR HORTON: To whom – to which bureaucrats did you make the recommendations?

THE WITNESS: I’m talking about ICANZ here and my from memory, I believe there was a meeting pretty much around about between 3 and 6 February where we were called in early to say – to ask our advice and say look, we’re putting this program together. What do you think should go in the program? It was basically starting from page 1. Blank page. And we said well, we nominated the standards we


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thought should go into the program which was AS3999, which was for bulk insulation not foil, and ASNZS48591 which is the product performance of insulation. We also recommend training should be part of the program and other things. And at that point in time, we said we did not recommend foil insulation.

MR HORTON: Now, these are the meetings you refer to as taking place on 6 February in paragraph 2.10 and 2.12 of your statement with Ms Riordan and Ms Horvath; is that right?

THE WITNESS: Yes. I can’t remember which meeting it was, whether it was the 6th or the 10th or whatever, but I remember that being raised at an early stage.

MR HORTON: Yes. And do you remember that people present at the meeting where you raise the issue?

THE WITNESS: Well, I can remember the ICANZ people present. I can remember Anthony Tannous, who’s president of ICANZ. He was there. I was there. Peter Ruz was there. Beth Riordan was at one of those meetings and I think I’ve mentioned we met with Natalie Horvath. And we pretty much repeated what we said at one meeting in the next meeting.

MR HORTON: Yes. You also raised the time frame for the rollout, you said at paragraph 2.12. And you expressed a preference for a four year timeframe over a 2.5; is that right?

THE WITNESS: Well, we said 2.5 with 2.7 million homes to be done, when we did some very quick numbers on it, we felt that the industry could probably only cover around about 500,000 homes a year. So we felt as though from a local manufacture point of view, that was going to be a very difficult timeframe to meet. We did recommend that we would need to decide on a range of R values so that we limited the type of product – not the type, but the R value of the product that went into the program. Rather than having 10 different R values to cover all climate zones, we recommended that any insulation that came into the program we should limit it to two or so R values so that we could get the maximum production from local facilities to be able to keep supply up, and we also said that we should monitor that we should regulate the demand. See if we could somehow manage it by perhaps having low income groups having first go at the program. See if somehow we could get an even flow of demand because - - -

MR HORTON: Yes. Was - - -

THE WITNESS: Go on.

MR HORTON: I’m sorry. I didn’t meant to interrupt you. I thought you had finished.


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THE WITNESS: So those are the sort of things we said. That would be ideal if we could limit the range of R values that went into the program which would mean we would have more product available of all sorts of products that were in the scheme plus if we could manage sort of smoother demand, it would give us a better chance to keep up with demand because it was a very tight timeframe. MR HORTON: You attended an industry consultation meeting on 18 February 2009.

THE WITNESS: I did. MR HORTON: And you were present, you say at paragraph 2.20, when Mr Ruz made a reference to a New Zealand scheme?

THE WITNESS: Yes, I was. And I would like to make a correction to that statement point, if I could.

MR HORTON: Yes, please do.

THE WITNESS: The statement now reads:

During the meeting, Peter Ruz, was at the time a director of ICANZ, mentioned the similar scheme in New Zealand had been suspended.

Now, that’s actually not true. The correct is that Peter Ruz raised the risk of electrocution based on reported fatalities in New Zealand. He didn’t say that the New Zealand scheme was suspended following these instances. Those two instances are quite separate.

MR HORTON: Thank you. So you would remove the words, would you, “which had to be suspended”?

THE WITNESS: Yes.

MR HORTON: But you include reference to him having said that three people had been electrocuted?

THE WITNESS: He said – I can’t recall whether he said three people but I remember he raised the issue of people being electrocuted using foil in New Zealand.

MR HORTON: Yes. Had you heard previously of that fact?

THE WITNESS: No, I hadn’t. That was the first time that fact had been raised for me.

MR HORTON: As a result of hearing this at that meeting, did you make some inquiries about the New Zealand position?


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THE WITNESS: No, I didn’t.

MR HORTON: Thank you. You mention at the bottom of that same page reference to a Victorian course.

THE WITNESS: Which point is that, please?

MR HORTON: 2.24, the bottom of page 3 of your statement. You recommended that untrained prospective installers be required to complete the basic module of a Victorian course.

THE WITNESS: That’s right. Individual states had run various programs for installation providing government subsidies over a number of years and Victoria had run a similar scheme and part of that was – part of the prerequisites to that is that they introduced a training module and an accreditation process that we had helped developed. And the fact that that scheme was only ceased because VEET – sorry, only ceased because the home insulation program had both continued in tandem. The risk was that people could double dip with the subsidies they got so they suspended the VEET program and – and the reason I suggested that that program might be a reasonable starting point is that, to the best of my knowledge, it ran very successfully and no – there was no installer injuries. There was – or other instances had occurred. It appeared to go quite well so it seemed to me to be a good starting point.

MR HORTON: And to what extent did it entail installers learning about substantive insulation installation techniques?

[2.30 pm]THE WITNESS: It just covered the basic installation – installation technique – insulation installation techniques plus some background as to how insulation works and why you do what you had to do. I don’t have a full copy of that program with me. I could find the program and send it to the Commission if they wanted the detail.

MR HORTON: Thank you. I think we have it somewhere. In relation to the question of fires, you say at paragraph 2.31 that you raised the issue with Mr Keefe in late April 2009.

THE WITNESS: Yes.

MR HORTON: And sent him a report about that which is annexure 4 to your statement.

THE WITNESS: Yes.

MR HORTON: What was the purpose in doing so?


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THE WITNESS: Well, the purpose in doing so is that the current standard or regulation, AS/NZS3000, called for a 200 millimetre gap around downlights. That was put in – put in place without any consultation to the insulation industry. AS3999 had a standard – which was not a mandatory standard – had in it a space around downlights of 25 millimetres that had worked quite successfully for many years. We had been in the process of doing extensive research with Bodycote Warrington who are an international – internationally well regarded fire expert and we – we did quite a whole series of tests over a year to show that mineral wool insulation was not combustible and, if installed correctly, presented no fire risk at 25 mils from the lights. And because we had completed that information, we gave that to Kevin Keefe and thought that that should be taken into consideration.

MR HORTON: Did you have any direct knowledge of fires and their causes which arose under the HIP program?

THE WITNESS: Only reported to me second and third hand. No, I wasn’t involved in any inspection of fires. There were numbers suggested during the course of the program and in the media. That was my exposure to them.

MR HORTON: Thank you. On 8 May, you say you attended a meeting of the Department of Environment training work group.

THE WITNESS: Yes.

MR HORTON: You discussed matters of training, you say, at paragraph – at 2.33 and following.

THE WITNESS: Yes.

MR HORTON: What I want to ask you about is you say at paragraph 2.35 that Mr Keefe said to you the focus was to increase employment so training was to be as inclusive as possible rather than exclusive.

THE WITNESS: Yes.

MR HORTON: Did Mr Keefe present that as his view or as the view of others?

THE WITNESS: No. That – that was said – well, he didn’t present it as the view of anybody else. That was a statement I heard more than once. Talking to Beth Riordan and talking to Kevin Keefe, he used that statement a couple of times particularly around foil. It was meant to be inclusive not exclusive. Training was not meant to be the gold standard. It was meant to have as many people come through the program as the – could be managed. We were not trying to make this best practices if – if – those are my words but that’s the impression I got.

MR HORTON: Yes. And what was your understanding of where things stood at the commencement of the meeting on 8 May with respect to the requirements that


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would be imposed under the Home Insulation Program from 1 July to do with training?

THE WITNESS: Well, I think it was still in discussion stage at – in May as to – there were various skill levels of people coming into this program or could come into this program and it was really discussing what training would be applicable to what level of skill. There was much discussion about did people that already had a trade background need to undergo further training on insulation, and there was – and at the other end of the scale was those that had never been inside a roof but might like to participate in the Home Insulation Program, what extra level of training they may require, and that was what that meeting, I believe, was all about.

MR HORTON: Yes. Well, let’s start with the last category of people you talked about, the – what I will call the “new entrants”, people who have not installed insulation before. What was the effect of the discussion that took place on 8 May by industry as to the type of training or competencies that those individuals should achieve?

THE WITNESS: Well, certainly, there was no negotiation on having a white card or a general briefing on occupational health and safety. There were also prerequisites to participate in the Home Insulation Program and that was to – to have some understanding of AS3999 which is the installation standard for bulk insulation, and to – to be aware of product standards that rate various R-values of products which was the other standards that – that AS/NZS4859 part 1. All industry groups put various positions and ICANZs position was that we favoured installers coming in under established contractors and everybody really should have some experienced person training them at some point during the program – during their introduction to the program. And there were other views expressed.

I think the Master Builders Association’s view was that because their members were tradespeople, they wouldn’t need to have any insulation installation training. We didn’t agree with that particular view but we were one group. There were many other views at that – that point. It was really trying to sort out how long a training program could be in order to get people interested in participating in it versus how much really would be mandatory for them to know. So - - -

MR HORTON: Was this – I’m sorry.

THE WITNESS: - - - the discussion flowed between those two points.

MR HORTON: Yes. Was this possibility raised with those people present at the meeting that perhaps an installer might not need him or herself to achieve certain competencies provided he or she was supervised by someone who had?

THE WITNESS: I’m really not sure whether it was raised at that meeting or not but I – I know that as the training unfolded, that’s sort of how it ended up later down the track. I – I believe that everybody – at 8 May, that everybody was going to have to


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do some sort of training but by the time it was actually rolled out, it had – it had sort of morphed into something a little bit more streamlined.

MR HORTON: Yes. And by saying that, that you thought everyone would have to do some training, do you mean that every installer who got inside a roof, whether supervised or not, would have done something more than just the OH&S white card?

THE WITNESS: Well, that – that was – that was our recommendation, yes.

MR HORTON: Was it your understanding as at the conclusion of the meeting that something like that would be in place?

THE WITNESS: No. No. Because, as I said, we – we had a – a very large body, like, and I think there were others like the Master Builders that didn’t feel their members should have to go and do insulation training. So you had different views that the government took on board and went away with the CPSISC to come up with some sort of training guide.

MR HORTON: Yes. But the Master Builders are a different category, aren’t they, because the Master Builders won’t have clean skin, so to speak. They won’t have complete new entrants to the construction industry, for example.

THE WITNESS: Well – well, our point there was that that doesn’t mean that they know anything about insulation - - -

MR HORTON: Well, I want to come - - -

THE WITNESS: - - - or how to install properly and so they needed at least some basic instructions on how to install insulation effectively.

MR HORTON: So what was your view – and was it a view presented – as to bricklayers, plasterers and painters satisfying the competencies under the HIP?

THE WITNESS: I’m really stretching my memory here but discussions went from a half-day course to a one-day course, and, of course, some of the associations said they don’t need that. Nothing was resolved at that meeting as to a definite course for – per skill level.

MR HORTON: Yes.

THE WITNESS: That I can recall, that is.

MR HORTON: Was the meeting told or were you told at the meeting that the project control group for the HIP would be meeting that day to discuss the question of whether installers themselves would need to achieve the competencies or whether supervision of them and the competency of the supervisor would be sufficient?


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THE WITNESS: I don’t recall making that statement to anybody.

MR HORTON: Was it made to you?

THE WITNESS: I don’t recall that being made to me either.

MR HORTON: Thank you. You say at paragraph 2.39 that you had a meeting with Mr Matt Levey, and advisor to Minister Garrett on - - -

THE WITNESS: Yes.

MR HORTON: - - - 19 May.

THE WITNESS: Yes.

MR HORTON: And what I would like to ask you about is your statement to him about the need for onsite inspections and inquiring if the HIP timeframe could be extended.

THE WITNESS: Yes.

MR HORTON: I want to ask you these questions. Did you ask Mr Levey directly whether the 1 July commencement date was something that could be extended?

THE WITNESS: No, I didn’t ask him that. I was more concerned with the length of the entire program.

MR HORTON: Yes. And what was your question to him about that?

THE WITNESS: I said that the program was very ambitious and that really we could operate the program far more logically and effectively if we could get some more time to complete the number of 2.7 million homes that were the target group.

MR HORTON: Yes. THE WITNESS: Mr Levey said to me that it was too early to start looking at a review of the program because it hadn’t formally started yet and so I guess that was another way of saying that it wasn’t going to be extended but you can ask me again at some other time.

MR HORTON: Yes. You also raised with him the issue of onsite inspections. Why, for you, was that the important issue?

THE WITNESS: Well, from the very start, even in early February when we had meeting with the Department, the very first meeting we had, we said that this is a very attractive offer and that it’s very important that supervision took place. We even recommended, I think it was to Beth Riordan, that you should have early audits,


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catch anybody that is not abiding by the scheme and discipline them and make that well known to anybody coming into the scheme that the program was being auditing.

MR HORTON: Now, your - - -

THE WITNESS: I think if you see through - - -

MR HORTON: Yes?

THE WITNESS: I think you see throughout the evidence I’ve – or the information I’ve given you, we really raised this importance of auditing at quite a number of the meetings that we had as stakeholders and with various bureaucrats as to when is this going to really get down and be down in earnest. MR HORTON: Yes. And do you have any direct knowledge of whether the sorts of inspections you recommended were occurring immediately after the program’s commencement on 1 July 2009?

THE WITNESS: No. I don’t have any evidence that they had started. I just got the feeling that they were still, if you like, structuring how to audit these sort of things. Some desk audits might have been taking place but no, I wasn’t privy to how that was going at all.

MR HORTON: Did you ever become aware of inspections taking place through your members?

THE WITNESS: My members inspecting their own work?

MR HORTON: Did your members ever make you aware that inspections on site were happening?

THE WITNESS: Not really that I can recall. No.

MR HORTON: You say in paragraph 2.43 about a meeting that occurred in June that there was concern voiced that registered installers may not have appropriate training and there was reference to it being essential that a supervisor must have relevant qualifications to sign the work orders.

THE WITNESS: Yes. MR HORTON: Were you aware by June that a supervisor needed to satisfy competencies but if that were the case that an installer himself or herself did not?

THE WITNESS: I became aware of that. That wasn’t a position that we proposed. In fact, we would have preferred all installers were trained but I became aware that that’s how that requirement was now being met.


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MR HORTON: Yes. And I want to ask you also about your involvement in the CPSISC pocketbook that was developed. THE WITNESS: Yes.

MR HORTON: You say, just going back a little bit, 2.35 and 2.36, you deal with that topic.

THE WITNESS: Sure.

MR HORTON: You were involved, I think, in some of the consultations with that body about the pocketbook.

THE WITNESS: Yes, I was.

MR HORTON: And you had some input into its contents by that means.

THE WITNESS: Yes.

MR HORTON: And did you see drafts of that book while it was being developed?

THE WITNESS: Well, that was my involvement, really. I attended a meeting that – most of my involvement was looking through the drafts and circulating that to my members and feeding back comments about what we felt was to go into that booklet. And I know that what we did feed back at that stage was that we did feed back that foil insulation was a conductive material and there is a possibility of electrocution taking place. So we made sure that comment at that stage went into that pocketbook.

MR HORTON: Yes.

THE WITNESS: I’m not saying that others didn’t feed the same information back but we made sure that comment went in.

MR HORTON: Could we see and could the witness please be shown AGS.002.010.1270. Sorry, can I change that reference. It’s CPS.002.001.1433. Now, Mr D’Arcy, seeing as how I can’t see what you’re seeing but if you’re on the first page there, you will see reference to your name in the email of 17 July 2009.


MR HORTON: And there’s reference there to stapling to aluminium foil products being an unacceptable risk. THE WITNESS: Yes.

MR HORTON: And it being something recently stopped in New Zealand. Do you remember receiving that email?


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THE WITNESS: I’ve since come across that email. Yes. I now remember receiving that email. MR HORTON: Yes. And is that part of the process of consultation that you’ve spoken about in which you were involved?

THE WITNESS: Yes. Well, Cameron Chick at that stage was working for Fletcher Insulation and he would have seen drafts of the copy of that, whether I circulated them to him or someone else, and that’s probably one of the comments he made back to me.

MR HORTON: Yes. And you mentioned earlier to feedback being given about foil insulation. Is this the feedback which you were speaking about?

THE WITNESS: Not that particular memo. We gave feedback saying that there was a risk of electrocution or that foil was a conductive product and there could be a risk of electrocution.

MR HORTON: Yes. Could I ask the witness to be shown please QIC.005.001.0470. And page 35 please, Operator. And so the page we headed for the purpose of the operator assisting the witness, the top of the page is – well, it’s 42 of the image document on the Ringtail system. Now, Mr D’Arcy, this is a version of the pocketbook - - -

THE WITNESS: Yes.

MR HORTON: - - - in which a certain warning appears in red.

THE WITNESS: Yes.

MR HORTON: Were you involved at all in the draft of the pocketbook before and after the insertion of this red warning?

THE WITNESS: Yes.

MR HORTON: And what was the - - -

THE WITNESS: Well, I was – sorry. Keep going.

MR HORTON: No, you go.

THE WITNESS: No, that’s the – they may not have been my exact words but the meaning was much the same. That’s how it came out in the drafts so I imagine other people made comments as well.


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MR HORTON: Thank you. When, to your knowledge, was the pocketbook first made available to industry as distinct from the consultative process in which you were involved?

THE WITNESS: I believe it was posted as an electronic document on July or August, some time around about then.

MR HORTON: Yes.

THE WITNESS: In terms of the hard copy, I was attending a conference – the Australian Building Codes Board conference – in mid to late September of that year and I was quite keen to promote this pocketbook but I hadn’t seen any hard copies of it at all, and so I approached CPSISC and asked them could I have an A3 laminated sheet to publicise this so that I could put it up on a display stand we had. And I also asked them could I have a copy – a hard copy of this pocketbook because I was presenting at that conference and I was told that I was one of the first to receive that – those copies. So I – whether that’s correct or not, that’s what I was told and I got five copies that I took up to that conference and held it up during my presentation and said “this is now available”. Now, I – nobody had shown me a hard copy of that before. It probably was on the net. I’ve got no doubt it was, but the hard copies took some time, I think, to be available.

MR HORTON: Yes. Can I finally ask you about Australian Standard 3000 and 3999?

THE WITNESS: Yes.

MR HORTON: You say at paragraph 3.2 of your statement that those standards have now been updated.

THE WITNESS: Yes.

MR HORTON: Did you have any difficulty as at 2009 with the state or currency of those standards?

THE WITNESS: Sorry, could you just clarify your question, please?

MR HORTON: Yes. Paragraph 3.2, you say, “The Australian standards have now been updated.”

THE WITNESS: Yes.

MR HORTON: Australian Standard 3000 is the wiring rules, Australian Standard 3999 is the one you mentioned about bulk insulation installation.

THE WITNESS: Yes.


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MR HORTON: But as – before they were updated, and at the time the HIP was being implemented, they weren’t – hadn’t been reviewed for some time. Is that right?

THE WITNESS: AS3000 had been.

MR HORTON: Yes.

THE WITNESS: But AS3999 was well overdue.

MR HORTON: Yes.

THE WITNESS: And so you had – you had a standard that was the wiring standard that was called up in each state jurisdiction as being part of your mandatory requirements and so that was, if you like, a mandatory requirement. But then you had AS3999 that was a voluntary standard and both were quoting different clearances from downlights. So obviously the AS3999 would take priority and AS3999 had very large clearances around downlights, we felt unnecessarily so.

MR HORTON: Yes.

THE WITNESS: So there would have been issues in the new building area, not in the existing building area. You don’t require a council permit or a building permit to put insulation in the ceiling so you could really do what you wanted. But if you are obliged to follow the standard that was a prerequisite of the Home Insulation Program which was 3999, there was some confusion about installers saying, “Well, we have this other standard of 3000 which applies to new build which does require a building permit and this standard”. So there was some confusion.

MR HORTON: Thank you. They’re my questions for this witness, Commissioner.

COMMISSIONER: Thank you. Mr Perry.

MR PERRY: I have no questions, sir.

COMMISSIONER: Mr Windsor?

<EXAMINATION BY MR WINDSOR [2.54 pm]

MR WINDSOR: Thank you. Mr D’Arcy, my name is Windsor. I appear on behalf of some entities that were involved in the insulation industry prior to the HIP. My questions to you relate to paragraphs 2.33. Could you just refresh your memory about that paragraph.

THE WITNESS: Yes.

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MR WINDSOR: Now, you make reference in that paragraph to an annexure, DDA5. If we could turn to STA.001.001.0103.

COMMISSIONER: That’s DDA5.

MR WINDSOR: It is.

COMMISSIONER: That one.

THE WITNESS: Three.

MR WINDSOR: It’s DDA5 to your statement and it has now come up on the screen. Do you see that?

THE WITNESS: Yes.

MR WINDSOR: Now, could we scroll over to the two pages to paragraph number 23, please. Could you just read that to yourself please, Mr D’Arcy.

THE WITNESS: Yes.

MR WINDSOR: Is this Commission to understand that you were reporting back to members of ICANZ as to what had happened during that training workgroup meeting on that date?


MR WINDSOR: And was it the case that Mr Kimber had given some indication that the program may be extended upon – or beyond 31 December 2011?

THE WITNESS: He didn’t say it would definitely close at that date. He said it may be extended – from my memory. I think it was a bit of a throw away line, really, but he was asked could the program be extended and I just think he said, well, basically the program is really running along. It may be extended beyond 2011. Virtually, who knows.

MR WINDSOR: Thank you.

THE WITNESS: It was – there was nothing serious about – no firm commitment.

MR WINDSOR: Right. Was it your understanding, at least up to that point in time, that the program was going to go until 31 December 2011 or until the money which had been allocated to the program had run out?

THE WITNESS: Yes, that was and in fact one of the – I think the first meeting, a Mr Wilson, maybe – I think it was Mr Wilson, he made a couple of points. He said that he had Mr Kevin Keefe there. He said Kevin Keefe’s KPI is to achieve 90,000

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jobs per month and that this program will run no longer than the 11 December and that or – unless the money ran out earlier.

MR WINDSOR: Right.

THE WITNESS: And that was set down as an ironclad statement. Now, I might be slightly out with the 90,000 but it was of that order.

MR WINDSOR: Ironclad in the sense of a guarantee that it was going to run for that length of time or until the money ran out. Is that your understanding?

THE WITNESS: The understanding was that it wouldn’t run any longer.

MR WINDSOR: Thank you. Thank you, Commissioner.

COMMISSIONER: Thank you. Mr Keim?


MR KEIM: Thank you, Commissioner. Mr D’Arcy, I just wanted to clarify something that you said in your evidence to Mr Horton, counsel assisting. My name is Steven Keim. I appear for Mitchell Sweeney who was one of the young men who died. He died on 4 February 2010. You were taken to the email from Mr Chick with its warning about the dangerousness of using foil and attaching it to ceiling joists. Do you remember that email? I can take you back to it if you need to.

THE WITNESS: No. I remember that email. That’s fine.

MR KEIM: Yes. It was about 17 July 2009. I thought you said that you also obtained feedback from your members and forwarded that back to the Industry Skills Council or the Department with regard to the copy – with regard to the pocketbook, the draft pocketbook that was being developed. Did I understand your evidence correctly in that regard?

THE WITNESS: Yes, whether I forwarded verbatim the evidence – the context of the email or not, I couldn’t be sure. What we did make sure of, that the risk of electrocution was raised. Whether we actually said stapling through was a dangerous practice, I’m not sure whether that was included in the amendments.

MR KEIM: But what I just wanted to be clear about was that in addition to the email from Mr Chick, there should be other emails from you on behalf of your members passing on similar feedback – perhaps not in the same terms but similar feedback. Is that correct?

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THE WITNESS: None that I have discovered. Not to say that there wasn’t at the time.

[3.00 pm]MR KEIM: But as I understood your evidence to be, your recollection is that quite apart from Mr Chick’s email, you had forwarded feedback as well, separate feedback, or do I have that wrong?

THE WITNESS: I just – no. I had just collated, whether it be phone calls or emails that were directed to me in relation to a draft CPSISC document, what – what I should put into ICANZ feedback back to CPSISC.

MR KEIM: And who did you provide that to?

THE WITNESS: Look, I’m not sure whether it was the CPSISC or whether it was to the Department. I’m not sure. The draft document was sent to me and I simply filled out our comments and forwarded it back to whoever sent it to me.

MR KEIM: And do you know in what form you sent it back?

THE WITNESS: It was a spreadsheet with comments on it.

MR KEIM: Okay.

THE WITNESS: Yes.

MR KEIM: Did you send it electronically or in hard copy?

THE WITNESS: Electronically. MR KEIM: Okay. And that’s quite independent of the Chick email that we’ve seen.

THE WITNESS: Yes.

MR KEIM: Well, obviously because that’s not a spreadsheet; is that right?

THE WITNESS: That’s right. That’s right.

MR KEIM: Yes. That’s all I had. Thank you, Commissioner. Thank you, Mr D’Arcy.

COMMISSIONER: Thank you. Mr Bradley.

<EXAMINATION BY MR BRADLEY [3.01 pm]

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MR BRADLEY: Mr D’Arcy, my name is Bradley. I’m appearing for the State of Queensland. Can I ask you just a few general questions about your knowledge of the state of the home insulation industry at the time this program was announced. You were in the chair at ICANZ from 2004; is that correct?

THE WITNESS: That’s right. MR BRADLEY: In that role, did you have any understanding or insight into the state of the insulation – the home insulation industry in Australia?

THE WITNESS: What, in terms of its volume or in terms of its – when you say state, what do you mean state?

MR BRADLEY: Well, can I ask you this particular question. Were you aware of the extent to which reflective foil products were being used as ceiling insulation in retrofitting homes in Australia?

THE WITNESS: A very interesting question. I’ve been in the insulation industry for over 25 years and the number of times I’ve been aware that foil rather than segmented batts or things like that, even segmented foil batts, but foil as in sheets, if I had come across it more than a half a dozen times, that would be about it.

MR BRADLEY: So your experience it would be very rare?

THE WITNESS: Very rare.

MR BRADLEY: Now, obviously it’s a product that’s used in other applications. We’ve seen in the standards there’s provisions for its use in walls and as sarking under roof tiles or other roofing materials - - -


MR BRADLEY: - - - but I’m asking particularly about its use over a ceiling.

THE WITNESS: No. I ..... insulation and - - -

MR BRADLEY: I’m sorry. Can I interrupt you there, Mr D’Arcy. We lost contact with you so we haven’t heard any of your answer since you last heard me speak.

THE WITNESS: Okay. My history in the insulation industry is quite long. It goes back over 25 years and part of the history was actually employed as a marketing manager for ACI Insulation and which later became Insulations Solutions and we were the largest supplier of foil product in the market. Probably that company, which is Fletcher Insulations now, probably still is. And we never recommended or saw applications of foil across ceiling. The rare exception where somebody had decided well, that was a good thing to do, but it was never recommended to my knowledge.

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MR BRADLEY: Thank you, Mr D’Arcy. Those are my questions, Commissioner.

COMMISSIONER: Mr Barrow.

<EXAMINATION BY MR BARROW [3.04 pm]

MR BARROW: Thank you, Commissioner. Mr D’Arcy, my name is David Barrow. I’m appearing for the sister of one of the young men who died. He died in New South Wales. He suffered from hypothermia.

THE WITNESS: Yes.

MR BARROW: The issue I wanted to just ask you about was some of your evidence about the meeting on 8 May, the training meeting, that you attended. Is it correct that that was the first occasion that there had been a meeting of industry representatives to discuss the question about training?

THE WITNESS: Well, the question the need for training came up as something that we really should include in this program. This was – the meetings decided that there was a need for training and they decided that they would have a sub working group on that. I was nominated from ICANZ to be on that sub working group and this was the first meeting, from my memory, of that sub working group. MR BARROW: Yes. And the sub working group included people like yourself with extensive experience in the industry.

THE WITNESS: Yes.

MR BARROW: And you weren’t alone in that regard. There were a number of people with extensive experience; is that right?

THE WITNESS: I would say there would be people there with reasonable experience, yes.

MR BARROW: One of the things that has emerged is, I think you’ve already been taken to it, is on this very day, the project control group made its decision to change the guidelines so that completely untrained labourers, provided they have an OH&S card and provided they were supervised could install insulation in ceilings. I think from what you said, you certainly weren’t aware of that on that day that that was being considered.

THE WITNESS: No.

MR BARROW: So was your sub group ever asked by the Department or anybody to come to some sort of considered opinion about that issue either as something that

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might happen in the future or subsequently to provide your input about whether it was a sensible step that had been taken?

THE WITNESS: I don’t recall that question being put to us. It may have been but I don’t recall – I have no recollection of that proposal being put to us. MR BARROW: Yes. And on this issue of experience, the group’s collective experience, would it be true to say that your group were placed as well to have opinions about whether supervision, whatever that might mean, would be an adequate protection for untrained workers?

THE WITNESS: There would be people that were better placed that were actually experienced and had years of experience on site to make that call. We – the people sitting around the table were not from the installer industry as such, as I can recall. There may have been one member that was a – had actually made a living out of installing insulation. We were sort of one step back from that, if that answers your question.

MR BARROW: Yes. Was Mr Hannam that person?

THE WITNESS: Yes. Mr Hannam could have been – yes, Mr Hannam, I think, ran a business and I think he probably had some experience personally in installing insulation, yes.

MR BARROW: Your recollection is that sub committee or sub training group were never asked for their views about either the changes to the competencies or what supervision was really – what supervision was necessary.

THE WITNESS: Your earlier statement was really talking about the decisions that were being made on that day and from what you described as the decisions that were being made about just having a supervisor qualified, I personally don’t recall that being raised and agreed at any of those meetings. But we are talking five years ago. So I don’t have any recollection of that particular recommendation being put to the meeting.

MR BARROW: Yes. Do you have any recollection of becoming aware of the change and giving any thought to its potential consequences?

THE WITNESS: Well, I think from the very start of the program we had a position where we thought all installers needed to be trained and I believe our members trained all their installers.

MR BARROW: Yes.

THE WITNESS: So we could only control – there is many interests around that table. We could only control what we were in control of, but our position, I don’t think, varied too much. We were always in favour that everybody should be trained.

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MR BARROW: Yes. I just wonder – I might just – there’s one other matter I wanted to ask you about and it’s associated with this issue. Does it surprise you that a decision about both training and supervision could have been made on the very day your group were there apparently actively discussing what was needed, and yet your group was not even asked?

THE WITNESS: Yes. It does – does make it feel a bit redundant, doesn’t it? And I think this may have come back to the – the comment that I made earlier about speaking with Kevin Keefe about training and he said it was meant to be inclusive and not exclusive and therefore the need for it to be streamlined to get enough installers into the program. So I think that’s sort of the general feeling I got.

MR BARROW: Yes. Yes, thank you.

COMMISSIONER: Mr Potts.

<EXAMINATION BY MR POTTS [3.10 pm]

MR POTTS: Yes. And thank you, Mr Commissioner. Mr D’Arcy, my name is Bill Potts. I represent the father of Rueben Barnes. Rueben Barnes died in November of 2009. He was 16 years of age. He had an OH&S card and, effectively, he was electrocuted in the roof in Rockhampton. I just want to take you briefly to the last statement you made to my learned friend, Mr Barrow.

THE WITNESS: Yes.

MR POTTS: You refer at paragraph 2.35 of your statement to this. You say:

It was made clear by Kevin Keefe that the main focus of creating the training requirements was to increase employment so the training was to be as inclusive as possible rather than exclusive.

And you’ve just quoted that back to Mr Barrow. What did you understand him to mean by that?

THE WITNESS: Well, he didn’t want to see the requirements of training as slowing the program down. We were talking at one stage about having a five-day training program and possibly longer, and the feeling around the table was that it could be covered in less than five days.

MR POTTS: Yes.

THE WITNESS: So – and as I’ve said elsewhere in three – 2.37, is that Mr Keefe, I think, made the point, “This is not meant to be a gold plated standard. We really want to do the basics.” And I think he even said that, for instance, familiarisation

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with the prerequisite Australian standards may – may be the responsibility of the business owner to bring his installers up to date rather than the program, but that was part of the discussion.

MR POTTS: I will come back to 2.37 in a moment but - - -

THE WITNESS: Yes.

MR POTTS: - - - he was suggesting to you that the process of training that was originally suggested might be effectively a drag or a barrier of some kind to prevent new persons coming into the installation business. Is that what you understood?

THE WITNESS: That’s what I understood by “inclusive rather exclusive”.

MR POTTS: So by “inclusive”, he was trying to tell you that he wanted a system which did not abandon training entirely, but put in a relatively lower standard of training – is that correct – than what was originally thought about?

THE WITNESS: They weren’t after the world’s best practice or a gold standard. They were looking for a level that would keep people flowing through the system.

MR POTTS: So in paragraph 2.37, subparagraph (1), where you say the HIP was not intending to provide a new gold standard for installation, is that better read as a new gold standard for installation safety or installation training, or just installation generally?

THE WITNESS: I think it was just – it wasn’t meant to incorporate everything possible that you could put into an installation training program. Just to pick out what was necessary - - -

MR POTTS: All right.

THE WITNESS: - - - to get this program going. For example, a full - - -

MR POTTS: In subparagraph - - -

THE WITNESS: - - - a full installation program might include walls and floors and various other things, so they just wanted to do the basics necessary to do a ceiling insulation program.

MR POTTS: But, of course, the basics would have to include matters, I would have thought, relating to the safety of not merely the installers but also the installation itself.

THE WITNESS: I would – I would say so, yes.


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MR POTTS: Because, primarily, as we know in retrospect, there are a large number of house fires and that there were four deaths. So the purpose of the training was surely, no doubt, to mitigate or lower the risks of both of those things.

THE WITNESS: I – I would say so.

MR POTTS: All right. So dealing with 2.37, subparagraph (2), where you say an OH&S white card would be mandatory for all installers, did you know then or do you know now what is in fact required to obtain such a card?

THE WITNESS: Well – well, it’s a separate course that you sit for a day and you – you go and do a white card at – at an RTO.

MR POTTS: Do you know whether it can be done essentially online by answering questions in the space of an hour and a half to two hours?

THE WITNESS: No, I – I don’t know that that’s the case. The only way I know of getting a white card is to – is to find an RTO that’s qualified to train you with an – in – is registered to be able to train people for white cards.

MR POTTS: All right. And that’s your belief now? And belief then, I suspect.

THE WITNESS: That’s my belief - - -

MR POTTS: All right. Just dealing, then, with the second part of subparagraph (2), it says:

Whilst other training will be strongly encouraged but not mandatory –

what did you understand that to mean?

THE WITNESS: Well, these were my notes that I took at the meeting.

MR POTTS: I understand that.

THE WITNESS: They weren’t - - -

MR POTTS: Yes.

THE WITNESS: I – I understood that perhaps they may have been watering down some of the recommendations.

MR POTTS: Human nature being what it is, if you introduce a large number of people, you take the brakes off the system and you’re concentrating on employment. Surely, that was just an invitation for people not to do any training at all apart from the OH&S white card.


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THE WITNESS: Is that a question?

MR POTTS: It is.

COMMISSIONER: It’s just a comment.

MR POTTS: Surely – sorry - - -

COMMISSIONER: It’s just a comment.

MR POTTS: Well, I will turn it into a question. Did you take that to be, in essence, an invitation for people to do no training whatsoever?

THE WITNESS: Not at the time, I didn’t. But subsequently, I thought it was an – it was probably too expedient.

MR POTTS: And something which may in fact have led to the deaths of people?

THE WITNESS: Well, I wasn’t anticipating any deaths of people at that time so I wouldn’t have thought that at the time but - - -

MR POTTS: My last question deals with subparagraph (4) of 2.37 – I’m sorry, I cut across you. Did you want to finish off?

THE WITNESS: No, I – I’m going back to my earlier comment that up until the Home Insulation Program, I’m unaware of any deaths that had occurred over 70 years. I’m unaware of any that occurred in the new building industry during the same period, nor am I aware of any that occurred since. So, really, these tragedies occurred in a very short space of time in a particular program. So, at this point in time, we – we would have considered installing insulation quite a safe occupation. Unfortunately, it – that’s not the way it turned out.

MR POTTS: Would the reason being is that in fact it’s not a safe occupation if you send untrained people into enclosed roofs?

THE WITNESS: Well, the – the history of the insulation industry is that we didn’t get people ..... and send them straight into roofs. They – they joined established companies, they worked with experienced people and it was more like an – an apprenticeship and that was – that was the structure we recommended from the beginning of the program, that that – that they should come in through established experienced installers, anybody that hadn’t had experience in the building industry before.

MR POTTS: And that’s what - - -

THE WITNESS: But that is not the way it turned out.


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MR POTTS: Sorry. And that’s why I wanted to take you finally to paragraph – subparagraph (4) of 2.37 which reads essentially that:

Participants generally agreed that a training course consisting of one day for OH&S card and a maximum of two days on other courses for beginners (less for those with some building experience) would be the most that could be expected.

In your view, and with, I suppose, the benefit of 20/20 hindsight, it would be the minimum that would be expected, surely.

THE WITNESS: I – I think that you could probably – well, I know you can run a training program in two days. It will cover the basics of ceiling insulation and would cover all the risks and safety in that time period.

MR POTTS: So, in retrospect, your view remains the same, that is, there should be at least the OH&S and a two day or a three day – at least some practical training course before any person, any installer should be allowed in a roof?

THE WITNESS: We’re running a – a two-day course right now and accrediting installers in – and we’ve incorporated all these cabling and electrical safety requirements into that course. One of the practical things about installers is that nobody is going to enrol in a course from day 1. There’s quite a – a number of people that come in and out of the industry and only last a couple of days and they work out this is not the – the industry they want to be in.

MR POTTS: Okay.

THE WITNESS: So what we do – what we do with people in these training courses is that we say that anybody that hasn’t been trained properly must work with a trained – 100 per cent of the time, a trained accredited installer but within three months, if they want to stay in the industry, they must do the training course.

MR POTTS: Your answer suggests two things. One is that there be direct supervision. That’s essential for new people.

THE WITNESS: Essentially.

MR POTTS: Yes. And secondly, that training, at least of a two day course, in the absence – sorry, in addition to that supervision is also essential.


MR POTTS: I just want to take you back – and this is my final question, Mr Commissioner – to a comment you made to Mr Barrow. That is, on that 8 May meeting you felt, I suppose, essentially in retrospect that your view or your position with respect to these things was just utterly redundant.


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THE WITNESS: Well, the question was posed to me, Mr Potts, that did I think it was strange that a decision was being made – we were here to start building a training course and the decision was being made in some other room that this is the way the training course would be developed. I suppose it was rather a cavalier statement but, in hindsight, if you look at it, you know, we – there was a number of people who had travelled miles and spent a lot of money to be sitting there to put their heart and soul into training – into building a training course. If someone else was going to cut across that and say, “Well, no, we’re not going to have that. We’re going to have something a lot simpler.” – that’s what I meant by – you know, it was a rather – rather a wasted exercise, really.

MR POTTS: And I’m supporting you in that. The question I was going to ask to follow from that was when you discovered that this was this change, did you say or do anything towards the people who had made that decision to try and convince them to come back to the fold and to follow up with training?

THE WITNESS: Well, I didn’t really know the process of how that morphed into that more expedient program, and you’ve got to remember that when this program started one of the views put to us at the beginning to say “We’re going to be developing this course as it goes. It’s going to be – we haven’t got all the pieces in place. We’re going to learn as we go. We’re going to accept recommendations and we’re going to make it better and stronger the longer the course goes.” So we were travelling pretty fast with other things at that time and it wasn’t something I can recall stopping and reflecting on and going back to find out who and where and what that – and why that got changed at that time.

THE WITNESS: Did it seem to you that they had a policy and they were going to effectively make up all the rest as it went along?

THE WITNESS: It didn’t occur to me like that at the time, no.

MR POTTS: Does it occur to you like that now?

THE WITNESS: It sort of is, yes.

MR POTTS: Thank you.

COMMISSIONER: Mr O’Donovan.

<EXAMINATION BY MR O'DONOVAN [3.23 pm]

MR O'DONOVAN: I appear for the Commonwealth, Mr D’Arcy.

THE WITNESS: Yes.

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MR O'DONOVAN: As I understand it, you represent two companies who are manufacturers of ceiling insulation. Is that right?

THE WITNESS: In that time period, yes. I represent three companies at the moment but there was two at that time.

MR O'DONOVAN: Okay. And so the companies that you now represent are Fletchers, Knauf and CSR Bradford. Is that right? Have I got that correct?


MR O'DONOVAN: Okay. And they still manufacture fibreglass insulation?

THE WITNESS: Yes, they do.

MR O'DONOVAN: Okay. And that’s available to be installed in a roof? That’s still – for ceiling insulation?

THE WITNESS: Yes, they do.

MR O'DONOVAN: Okay. Is it available at hardware stores like Bunnings and the like?

THE WITNESS: It is.

MR O'DONOVAN: So it’s accepted by your members that completely untrained people can go down to Bunnings and buy insulation and enter the roof space and lay the insulation.

THE WITNESS: It has been that case for many years and, yes, it is accepted that following the instructions on the pack – and some of the material we have now on the ICANZ website following the revelations of the Home Insulation Program – that they can install insulation themselves.

MR O'DONOVAN: Okay. So it’s – you would agree that by agreeing to those commercial arrangements, it’s accepted by your members that untrained people will be entering roofs, installing your products.

THE WITNESS: Yes, it is.

MR O'DONOVAN: Now, if I can just confirm my understanding of your evidence about your understanding of foil. So you gave evidence that you had a meeting with Beth Brunoro at the start of February 2009.

THE WITNESS: Riordan – Riordan, as I knew her at that time. Yes.


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MR O'DONOVAN: Yes, yes. Of course. So you had a meeting with Beth Riordan and at the time where you met Beth Riordan, you weren’t aware of the New Zealand experience?


MR O'DONOVAN: Okay. And so that to the extent that foil was discussed, the only issues you had it with that point in time were that it wasn’t a very effective insulation and that it covered up roof joists so it was possible you could – it increased the risk of falling through the ceiling.

THE WITNESS: It just made it a little – a little bit more – more accident prone for – yes, that’s correct.

MR O'DONOVAN: Okay. So when you then subsequently attended the meeting at Old Parliament – I think it was at Old Parliament House, was it, on 18 February?

THE WITNESS: Probably it was, yes.

MR O'DONOVAN: All right. And it was at that meeting that Denis[sic] Ruz raised the New Zealand experience? Sorry, Peter Ruz.

THE WITNESS: Peter Ruz.

MR O'DONOVAN: Yes. Peter Ruz raised that New Zealand experience.


MR O'DONOVAN: Okay. Now, according to the minutes which are annexed to your statement, when you raised that remark there was some discussion and the minutes reflect that the appropriate response was in relation to training. Now, does that accord – that the matter should be dealt with by training. Does that accord with your recollection?

THE WITNESS: I can only go and say the minutes – if that’s what’s recorded in the minutes, that must have been what was at the time. I can’t recall whether that – whether that was the connection to that point or not but I would have to trust the minutes, I’m afraid.

MR O'DONOVAN: Okay. No, that’s fine.

THE WITNESS: I might say that during the morning break of that meeting, I was – the – I’m pretty sure it was that meeting that we were discussing foil with Kevin Keefe and, again, the phrase “this program is inclusive of materials not exclusive” and I’m – my memory – my memory is that he said that foil had been accepted into the program and basically we took it as, well, that’s the way it’s going to be because we were – I think we were asking him the question of why was foil in the program.


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MR O'DONOVAN: Okay. Now, this – this - - -

THE WITNESS: And he said, well – he said “It has been – it has been – it has already been accepted into the program and the program is meant to be inclusive, not exclusive”.

MR O'DONOVAN: Okay. Now, that’s not a conversation you have reported previously to the Commission, is it?

THE WITNESS: No. No. It’s – I – I – I remember that conversation. I couldn’t place where it was or with who it was but subsequent – subsequently other people have reminded me when that conversation took place.

MR O'DONOVAN: Okay. So who were you speaking to about that conversation?

THE WITNESS: Mr Ray Thompson.

MR O'DONOVAN: Right. And when were you speaking to Mr Thompson about that conversation?

THE WITNESS: When this Royal Commission was called and I was asked to appear before it and I had already prepared my statement.

MR O'DONOVAN: All right. So you say that Mr Keefe said that foil has already been accepted into the program on 18 February.

THE WITNESS: I believe that – words – words to that effect.

MR O'DONOVAN: Okay. Were you aware that early installation guidelines were published on 26 February 2009?

THE WITNESS: Yes.

MR O'DONOVAN: So that’s eight days after that meeting.

THE WITNESS: Yes.

MR O'DONOVAN: And were you aware that in terms of the products which it defined was that, in relation to the first version, that it was the material R value and not the – not the total R value that was required? Was that your understanding of the first guidelines?

THE WITNESS: I – I haven’t got the guidelines here but there was a lot of discussion about material R value and total R value and systems R value.

[3.30 pm]


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MR O'DONOVAN: Okay. Well, let’s just try and unpack these ideas. So, as I understand it, fibreglass insulation has a material R value so you can just put a number on the pack and that’s what it – that’s its R value?

THE WITNESS: Well, sorry – is that – you’re asking me do I agree with that?

MR O'DONOVAN: Yes. Yes.

THE WITNESS: Well, the way to test a product that has got some thickness in it is to have it tested and measure the temperature difference on either side and you get an R value.

MR O'DONOVAN: Okay.

THE WITNESS: And that’s the R value of that particular material.

MR O'DONOVAN: Okay. But as I understand it, there is also a system R value looking at the total ceiling components and the R value that they will – if you combine some components, there’s an R value that they reach as a total system.


MR O'DONOVAN: Yes. And it’s in relation to foil that the – sorry. And in relation to foil insulation, it doesn’t, as a product, have a material R value but it’s possible to develop a system R value for the installation of foil?

THE WITNESS: Yes. Correct. Foil as a product in itself doesn’t really have an R value, but when combined with a still airspace, it has a system R value.

MR O'DONOVAN: Yes. All right. And if you accept that the first set of guidelines as issued on 26 February only allowed for a product R value rather than a system R value, that would have had the effect of excluding foil from the program, wouldn’t it?

THE WITNESS: Well, it certainly wouldn’t have allowed the measurement of foil, yes.

MR O'DONOVAN: Yes. Okay. So – and it wasn’t until in March the guidelines were amended to allow a system R value but foil could be installed under the guidelines. If you accept that, that rather suggests that it’s unlikely that Mr Keefe had a conversation with you saying that foil was in the program on 18 February when guidelines were issued eight days later that did not accommodate foil.

THE WITNESS: Mr Keefe had a conversation about foil following Peter Ruz’s comment. And my recollection of the meeting, he said foil was being considered or had been accepted into the program. Now, I could be wrong with the date but that’s my recollection of it.


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MR O'DONOVAN: All right. Now - - -

THE WITNESS: I suggest that you ask Mr Ray Thompson as well because he was the one that he was having the conversation with. I just happened to be on the outskirts of that conversation.

MR O'DONOVAN: Now, if we – now, the program effectively began on 3 February when it was announced by the Prime Minister that insulation would be available under, I suppose, an introductory scheme from that date. Are you aware of that?

THE WITNESS: Yes.

MR O'DONOVAN: So at that point, people could begin installing the product with the government subsidy immediately. THE WITNESS: The consumer needed to pay the money up front at that early stage and had to apply for a subsequent – had to apply for a rebate of the amount they paid after the job was finished.

MR O'DONOVAN: Yes.

THE WITNESS: And after July 1, of course, the consumer wasn’t involved in any upfront payment. MR O'DONOVAN: Yes. Now, at that point, did you start to notice an increase in installations happening?

THE WITNESS: Not a great increase. There was some uplift in business, yes, but not a great increase. Nothing towards the level of 90,000 per month that seemed to be the target that the government was aiming for.

MR O'DONOVAN: Yes. THE WITNESS: It changed radically of course once the consumer didn’t actually have to pay money up front. MR O'DONOVAN: Okay. But at the point in time prior to 1 July, as I understand it, that in order to offer an installation service, all that was necessary was for a person to have an ABN number and be operating in the installation of thermal insulation which is something they could do just by putting up a shingle saying that they were operating in the insulation business. Is that your understanding?

THE WITNESS: It was, and that was why we suggested that we needed a training program.


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MR O'DONOVAN: Sure. But at that – so at that point prior to the commencement on 1 July, there were even fewer requirements in terms of training being imposed on new entrants to the industry. That’s right, isn’t it?

THE WITNESS: There were, indeed. That is right.

MR O'DONOVAN: Okay. Yes. So at the point of 1 July when registration was required, terms and conditions were imposed and competency requirements were imposed, that was increasing the requirements on the industry at that point.

THE WITNESS: Yes. MR O'DONOVAN: Is that right? Yes.

THE WITNESS: Well, it was in – it was – the requirements of the program certainly had become more stringent, yes.

MR O'DONOVAN: Yes. All right. Now, you also refer to a Victoria course - - -

THE WITNESS: I do.

MR O'DONOVAN: - - - in paragraph 2.2.3 and my understanding is that the course you’re referring to there is a one day course.

THE WITNESS: I’m not sure. I would really have to go back and check the length of the course. I mean, this is six years ago. I’m not sure whether it was a one day or a two day course, but it wasn’t a long course.

MR O'DONOVAN: Right. Wasn’t a long course.

THE WITNESS: No.

MR O'DONOVAN: All right. Those are my questions, thank you, Commissioner.

COMMISSIONER: Thank you. Mr Jersey has silently appeared for the witness.

<EXAMINATION BY MR DE JERSEY [3.36 pm]

MR de JERSEY: Mr D’Arcy, would you look at paragraph 3.5 of your statement, please.

THE WITNESS: Yes.

MR de JERSEY: You refer there to the Australian wall and ceiling industries; is that correct?”

10.4.14 P-2691 D. D'ARCY XN©Commonwealth of Australia MR JERSEY

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THE WITNESS: No, that’s not correct. It is the Association of Wall and Ceiling Industries.

MR de JERSEY: Thank you, Mr D’Arcy. That’s all I’ve got for Mr D’Arcy.

COMMISSIONER: Mr D’Arcy, it’s the Commissioner speaking. I’ve just got a question or two that you may not be qualified to answer and if so, just say so. Ceiling joists these days are made of what?

THE WITNESS: Timber. They can be timber or metal.

COMMISSIONER: Timber or metal. And is the timber used these days pine or hardwood?

THE WITNESS: Usually pine.

COMMISSIONER: And in the old days, and I’m thinking about retrofit, were they made of hardwood?

THE WITNESS: They were more likely to be made of hardwood.

COMMISSIONER: Right. And if you were putting plastic staples into hardwood, it would be a very difficult task to get them to work.

THE WITNESS: To be honest, Commissioner, I’ve never tried to put plastic staples into hardwood or pine, so I couldn’t answer that question.

COMMISSIONER: No. Thank you. Mr Horton.

<EXAMINATION BY MR HORTON [3.38 pm]

MR HORTON: Mr D’Arcy, you were asked questions by me and by others about the 8 May meeting.

THE WITNESS: Yes.

MR HORTON: I would like to show you a document please and see whether it accords with your recollection. AGS.002.023.3151. Just so you know the context of this Mr D’Arcy, if you have your operator, and if our operator will do the same, scroll to the bottom of page 2 of the document. You will see that’s an email from Jane Spence to you and others in the industry about the workshop. And then if we just come further up the document back to page – back further up that page - - -

THE WITNESS: Yes, which – any particular reference?


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MR HORTON: Yes. If you could just scroll up a bit further operator just to the bottom of page 1 and the beginning of page 2 if you can show both. Yes. Minimum competency requirements, Mr D’Arcy.

THE WITNESS: Yes.

MR HORTON: Associations recognise that while mandatory enterprise unit would be ideal, it wouldn’t be possible by 1 June. Now, that might mean 1 July because that’s the date the program is to be rolled out but does that accord with your recollection of what happened?

THE WITNESS: I have no clear recollection of what was made there but if that’s what’s recorded in the minutes, I would have to defer to the minutes.

MR HORTON: No, these aren’t the minutes this is Mr Kimber who was also present at the meeting reporting back to people in the Commonwealth.

THE WITNESS: Okay.

MR HORTON: So don’t take it as being the Minister, but just take it as his contemporaneous recollection perhaps. And the second dot point there:

Overall general agreement, minimum requirements struck and accept all balance.

And then the next few words:

Given the lack of time for enterprise unit and the need for low barriers – low entry barriers.

Do you remember those topics being discussed on 8 May?

THE WITNESS: I don’t remember them being summarised in that format. As I said, that meeting put a number of views forward. We put our views forward as INCANZ. Whether this was a summary of the majority of the view, that could well be but I think if you see here, I think it was Mr Gow from the MBA had a – had a different view to INCANZ. We said that people should be trained if they were plasterers or brick layers. He was of the opinion that they shouldn’t, they didn’t need it necessarily. I don’t remember – I don’t recall there being a summary that this was the agreement of the meeting.

MR HORTON: No. I understand. It wasn’t sent to you, from the look of the email itself.

THE WITNESS: No. No.


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MR HORTON: Just go further back up to page 1, would you operator. This is a further email from Mr Kimber. Again, not to you but I’m asking whether it accords with your recollection of what took place in the meeting. Under “Enterprise training unit” – see the heading there – “Non-mandatory course for new entrants”?

THE WITNESS: Yes.

MR HORTON: Do you remember an enterprise training unit which would be non-mandatory for new entrants being discussed?

THE WITNESS: No, but the second point there is that Master Builders, ICANZ and Fletchers agree that new entrants would only need one day OH&S plus two days insulation specific training.

MR HORTON: Yes.

THE WITNESS: That’s what I thought – that’s what I thought our position was at that, which would mean that’s what we expected.

MR HORTON: And then dot point four, “All participants”. See that paragraph under that dot point – next to that dot point? Sorry, just back up, operator, to where you were. That’s it.

THE WITNESS: Yes.

MR HORTON: That’s it.

THE WITNESS: I do remember discussion that a five day course may not be necessary to cover all the requirements and may be too onerous. And I do remember, you know, suggestions of anywhere between – well, it would be three days because it would be one day for the OH&S and two days for other, and I do remember being some various views around the table about what might be an acceptable dollar value to place on the training course to attract people into it.

MR HORTON: Yes. Was there a – was it the general view, though, that such a course as referred to in dot point 4 would not have been a barrier?

THE WITNESS: Yes, in the context that the original suggestion was five days. I – I vaguely remember saying, “Well, if five days is a barrier, what would not be a barrier?” and I think that’s where quite a bit of discussion was had and that – dot point 4, I wouldn’t disagree with that.

MR HORTON: Thank you. They’re my questions of Mr D’Arcy.

COMMISSIONER: Thank you. Thank you very much for your evidence. You may be excused. You are excused from further attendance. We are grateful for you to come.


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THE WITNESS: Thank you.

<THE WITNESS WITHDREW [3.43 pm]

COMMISSIONER: Recall Mr Kimber.

MR DE JERSEY: Commissioner, may I also be excused?

COMMISSIONER: Yes, of course, Mr de Jersey. Thank you. Yes, Mr Wilson.

<WILLIAM KIMBER, RECALLED [3.44 pm]

MR WILSON: Commissioner, I just wanted to raise one matter with you before Mr Keim continues. Having learned – sorry, having listened to and heard the evidence of this witness before lunch, in my respectful submission it would be appropriate, given the seriousness of the Commission and the work that it is undertaken – undertaking perhaps to remind the witness of the provisions of section 6H(1) of the Act which deals with a person not giving evidence that the person knows to be false or misleading with respect to any matter, given the professed lack of recollection in relation to quite obvious matters. Perhaps to remind Mr Kimber of those matters.

COMMISSIONER: Yes, all right. Mr Kimber, there is some concern about some of the evidence you’re giving as to whether it’s reliable or not, and you’ve got to remember that to give false or misleading evidence is an offence. You understand that.

THE WITNESS: I understand that.

COMMISSIONER: Yes. Okay. Carry on, Mr Keim.


MR KEIM: Could the witness see STA.001.001.0103.

COURT OFFICER: Sorry, I missed the last four digits.

MR KEIM: 0103. This document, Mr Kimber, is somebody else’s notes of the meeting of 8 May that we discussed or that we have discussed a number of times this morning. That’s the training meeting on 8 May. Do you understand what I’m saying? There’s just two passages I wanted to take you to.


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THE WITNESS: I don’t understand how this relates to the 8 May. The document that you’ve presented me.

MR KEIM: Yes. Yes. I will just – just look at me for a moment and I will just explain it to you. Do you understand or do you recall the training meeting on 8 May about which you wrote a note? Do you remember that?

THE WITNESS: Yes.

MR KEIM: You wrote an email. You understand the meeting that I’m talking about?

THE WITNESS: Yes.

MR KEIM: Okay. This is somebody else’s note of that meeting. I just wanted you to go to page 3 of the document, which is page 0105 - - -

THE WITNESS: I don’t see how the title of that document refers to 8 May.

MR KEIM: Yes, don’t worry about that. I want you to go to page 3.

COMMISSIONER: I don’t either. Don’t worry.

MR KEIM: And paragraph 13, I just want you to have a look at paragraph 13. It says:

Question raised by Will Kimber. Will industry use this framework if it’s developed or is the exercise a white elephant?

You understand the context of that question that you’re supposed to have seen?

THE WITNESS: No, I don’t, because I don’t understand where this document has come from nor that it has anything to do with 8 May.

MR KEIM: No. Accept that I tell you that it is somebody else’s notes from that meeting. I just want to ask you whether you said the things that you’re reported as saying.

THE WITNESS: No, I did not say that.

MR KEIM: You did not say that? Can I suggest that it might be a quite reasonable thing for you to say in the sense that you might be interested in whether, if you go – you and the Department – the Department of Employment and the Industry Skills Council go to all of this trouble of developing a national course, you might wish to be satisfied that it will, in fact, be used by industry. You understand why somebody in your position might say that?


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THE WITNESS: I don’t accept that I said this or that this relates to any meeting that I was at.

MR KEIM: Okay. So your evidence is definitely that you didn’t say that on that – on 8 May - - -

THE WITNESS: Well, I don’t know if I did but I find this document confusing and not clear as to where it has come from, who has written it or when it was written.

COMMISSIONER: Mr Keim, I think surround it with a little bit more detail for him. It’s supposed to be a record of what took place at a meeting on 8 May that you were at. It’s a document written by somebody else. So somebody else is saying, well, Will Kimber raised the question, “Is industry going to use this framework if we develop it or is it just a white elephant?”.

THE WITNESS: Well, you would need to speak to whoever that person is, not me.

MR KEIM: I will try it this way. Imagine that you and I are having a meeting and you might be jotting down notes of the meeting and I might be jotting down notes of the meeting. And at the end of the day, they might look quite different. I might have emphasised some things that you didn’t think were important. You may have made notes about things that I didn’t worry about making notes. You understand the process I’m talking about, in theory?

THE WITNESS: In theory, I understand that people would take notes of a meeting, yes.

MR KEIM: Yes. And different people could take different notes.

THE WITNESS: Yes.

MR KEIM: And some people might think some things are important and worth noting that other people might not note at all.

THE WITNESS: Well, I don’t know.

MR KEIM: And this person says – and I will give you some more context – it’s Mr D’Arcy who just gave evidence. He says he took a note of that meeting. Now, was he at that training meeting on 8 May, can you recall?

THE WITNESS: I would need to refer to the attendance list and perhaps you should ask Mr D’Arcy if he was there rather than asking me.

MR KEIM: Yes, well, he says he was there, you see, and he says that he took this note. And it’s just against that background I want to ask you whether you have any recollection as to saying those words that are attributed to you:


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Will industry use this framework if it’s developed or is this exercise .....

Do you have any recollection of saying that?


MR KEIM: Okay. And in saying that, do you say it’s very unlikely that you said or is it something that you might have said but you just don’t recall it now because it’s a long time ago. THE WITNESS: I don’t know.

MR KEIM: Okay. And I wanted to ask you another question on the same page in the same terms, and if you go down to paragraph 23 – and I’m really just showing you this because I thought seeing it in words might help you wrap your mind around it and help to see whether you remember it or not. They’re the suggestion is that you said – you, Mr Kimber, said:

If the industry was unable to meet the targeted numbers by the end of 2011, the government might extend the program.

Do you recall saying that at all?


MR KEIM: Do you think it’s possible that you might have said that?

THE WITNESS: Well, that wasn’t the – that wasn’t the information that I had at the time so I don’t see why I would have said that because it wouldn’t have been correct.

MR KEIM: Now, if somebody had said, Mr Kimber, do you know if this program might be extended, would you have answered that question?

THE WITNESS: No, because I didn’t have information that I could give to industry that would answer that question.

MR KEIM: Now, I wanted to go onto another subject so we can take that document down. Do you have your statement and the exhibits in front of you?

THE WITNESS: I have the statement.

MR KEIM: You can look at the screen. I’m not trying to stop you from looking on the screen but the document that I’m going to ask to be brought up on the screen is your annexure C, and that’s a letter that you received from Ms Sydney on 21 April 2009. And it’s the proposal from the Industry Skills Council with regard to developing the resources. So the document is AGS.002.008.0140. That’s the letter. And that will come up on the screen.


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COMMISSIONER: Mr Kimber, it may be helpful to you to actually use the written statement. You had one before lunch. What has happened to it?

THE WITNESS: It’s just up there.

COMMISSIONER: I think it’s frequently easier to see the whole document rather than just the bit that shows on the screen. What exhibit is it, Mr Keim?

MR KEIM: It’s annexure C.

COMMISSIONER: Annexure C. MR KEIM: Referred to at paragraph 19 of the statement. Annexure C is the document. So you see that letter from Ms Sydney to you?

THE WITNESS: Okay. Yes.

MR KEIM: Can you see what it’s about? It’s about sending you the proposal from the Industry Skills Council.

THE WITNESS: Okay. MR KEIM: This is what we will do for you and this is how much we will charge, etcetera.

THE WITNESS: Okay.

MR KEIM: Do you understand that

THE WITNESS: Yes.

MR KEIM: Okay. And then I wanted to take you to – if you flip over two pages, on the next page you see the front page of the proposal and then the first page with detailed writing is the next page over and that is AGS.002.008.1557. The page in question is – sorry, that’s 1257, I’m sorry. 008.1257_0001. Does that make sense?

COMMISSIONER: It’s headed Project Overview.

MR KEIM: You can see that. And I wanted you to go down – it’s really just the timing of things. I wanted you to go down to the third last dot point from the page, about halfway through that paragraph. The paragraph starts:

Due to the tight time constraints – Can you see that? Can you see that paragraph that starts:

Due to the tight time constraints –


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THE WITNESS: Yes.

MR KEIM: And then halfway through that paragraph, about the fourth line, there’s a sentence which starts in the middle:

Materials will only be developed in a very basic form Word document with minimal graphics and enhancements and will be completed by 1 June 2009.

And then at the end of that paragraph there’s a statement:

These materials will be finalised by the end of July 2009.

I just want you to take that information in. And my question is this. It was already very clear when you got the proposal, wasn’t it, that this training course – this new training course, would not be able to be up and running by 1 July. You would have understood that that at that time because you not only had to have the training materials in their final form, you then had to get RTOs interested in it, get them to skill up, get their scope recognised, etcetera. So my proposition to you is that when you saw that proposal, and it wouldn’t have been a surprise to you, you would have know that the new training course that you were engaging people to help – well, engaging people to develop for you wouldn’t have been able to be up and running by 1 July. Do you agree with that?

THE WITNESS: No.

MR KEIM: Did you think you would have it up and running by 1 July?

THE WITNESS: I wasn’t experienced or qualified in designing training courses and we were looking to receive advice from the experts. So it wasn’t my place to know or advise on how soon or how quickly such a thing could be done.

MR KEIM: I suppose I – my question to you is did you ever say to Ms Sydney or to Ms McEwan or anyone else, did you say when do you think you will actually be able to have people teaching this course. Did you ever ask that question?

THE WITNESS: Well, I recall that people working on this training were aware of the government’s timeframe and the 1 July date that was in the media release from the treasurer. So they would have been aware of the government’s timeframe.

MR KEIM: But in answer to my question, you never asked them when it would be up and running. You just assumed that they were aware of that due date.

THE WITNESS: Well, everyone was aware of the fact that the government had a timeframe and that the training needed to be ready so that installers could do it in time to meet the government’s timeframe. MR KEIM: Okay. So you never asked the question.


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THE WITNESS: I don’t recall asking that specific question.

MR KEIM: Okay. Now, I wanted to ask you some questions – this is a separate topic now – I wanted to ask you some questions about what information that you provided to Ms McEwan and Ms Sydney. So I will preface the question with this. We know that there were industry consultation meetings taking place. We know from the minutes that we’ve seen this morning that there was a meeting on 18 February. You were taken to that a number of times. You remember that meeting?

THE WITNESS: Yes. MR KEIM: And then there was another consultation meeting about almost exactly a month after that. Do you recall that?

THE WITNESS: Which meeting are you talking about?

MR KEIM: Well, another industry consultation meeting.

THE WITNESS: Well, you said a month after.

MR KEIM: Yes. A month after 18 February. I think it was, in fact, 18 March.

MR ..........: 20 March.

MR KEIM: 20 March, I’m told. Do you remember that there was another industry consultation meeting about a month after the one in February?

THE WITNESS: Well, yes. I mean, you’ve shown me documents of a number of meetings. MR KEIM: Yes. And then there was the training advisory group meeting on 3 April and I will take you to those minutes – well, I will take you to your email with regard to that later but you remember that meeting, 3 April, you sent an email .....

THE WITNESS: Well, as I’ve said before, I don’t have specific recollection of individual meetings and what happened on each day but if you have documents that refer to those meetings, I’m happy to take them as granted that the meetings occurred because our practice was to take minutes at the time.

MR KEIM: Okay. So my question really is this. Did you make any effort or did you go to the trouble of collecting the information from the minutes of those meetings and provide it to the people at the Industry Skills Council saying, well, these are the issues that have been raised with us that may need to be dealt with by training. Could you make sure in developing the training that you do whatever is necessary to meet these things. Did you provide any information to Ms Sydney with regard to those matters?


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THE WITNESS: Well - - - [4.00 pm]

MR KEIM: Provide the information that you had received in the processes of consultation to Ms Sydney for her work?

THE WITNESS: I can’t give you a precise answer as to what information was provided but I can tell you that our practice at the time was to keep records and under whatever arrangements the CPSISC was engaged, there would have been instructions to them.

MR KEIM: Okay. But you don’t know what was provided in those instructions?

THE WITNESS: No. I haven’t been given a copy of those instructions.

MR KEIM: Okay. I will ask you to have a look at that document that relates to the meeting of 3 April, the training advisory group meeting. That is AGS.002.029.0929. Now, can you have a look at this when it comes up. You will have seen this this morning. You will be familiar with this. This is the one – do you recognise that? That’s, we think, an email from you to Mr Keefe, copied to Ms Kaminski and Ms Spence. Do you see that?

THE WITNESS: I recognise this email as being the one that doesn’t have an author.

MR KEIM: Okay.

THE WITNESS: And I’m also aware that there’s a – a subsequent document to this which is more comprehensive.

MR KEIM: Okay. And this is – this document here – this one here makes reference to the high likelihood of catastrophic consequence, injury or death. Do you want to just see that line? I will just ask that to be brought up.

THE WITNESS: I can recall the line, yes.

MR KEIM: Yes. There it is there. The second dot point. And the need for a risk plan. I think Mr Wilson took you to the third dot point. Do you see that?

THE WITNESS: Yes.

MR KEIM: And that information is repeated in a more comprehensive document, isn’t it?

THE WITNESS: I believe so.

MR KEIM: Yes. So my question is – and it may be the same answer that you’ve just gave me before – my question is: did you provide the information from this


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meeting to the people at the Industry Skills Council in order to assist them in their work as part of their instructions?

THE WITNESS: I can’t recall what information was provided, only that they would have been given instructions.

MR KEIM: Okay. Now, if I asked you this: did you know a Ms Coaldrake?

THE WITNESS: Yes.

MR KEIM: And did you know a Ms Kent? I think Ms Kent didn’t start until 15 April in the HIP program. Do you know of Ms Kent?

THE WITNESS: Yes.

MR KEIM: And did you – what did you understand of Ms Coaldrake’s role?

THE WITNESS: That Ms Coaldrake was commissioned by the department to assist with developing a risk management plan.

MR KEIM: Okay. Did you attend the meeting where various risks were identified? A risk workshop with Ms Coaldrake?

THE WITNESS: There were various meetings with Ms Coaldrake, yes.

MR KEIM: Which you attended?

THE WITNESS: Some of them, yes.

MR KEIM: Okay. My question is this – it’s a bit like the question with regard to Ms Sydney – can you recall at any stage communicating those two dot points that are on the screen there, the second and third, “high likelihood of catastrophic consequence” and “risk plan needs to cover working at heights”, etcetera, including electrical?

THE WITNESS: I can’t recall passing that on to Margaret Coaldrake but if I did, there would be records of that.

MR KEIM: Okay. And can you recall raising the need for – well, raising the matter of catastrophic consequence, death or serious injury and the need for a risk plan, or either of those – do you recall raising that in the workshop meetings or in any of the meetings that you attended with Ms Coaldrake?

THE WITNESS: I don’t recall. But if I did, there would be records of it.

MR KEIM: Okay. But is it – am I right in understanding from your evidence this morning that by the time we get to 3 April and you’ve attended that training advisory


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group meeting, you were quite concerned by that stage with regard to the risk of injury to installers because it had been raised with you by the experts? Is that right?

THE WITNESS: I was concerned by the risk that had been raised.

MR KEIM: Okay. And – I will leave it at that. Now, annexure F to your statement – again, it might be best to go to the hard copy. Now, annexure F contains a whole lot of course materials which have different code numbers. The first one of which is AGS.002.008.0734. Do you have the one that starts “CPCCPB3015A” in front of you?

THE WITNESS: Yes.

MR KEIM: And did you have a chance to look through these overnight? These - - -

THE WITNESS: No.

MR KEIM: This course material. Okay. So my question is really this: at some stage, I assume those materials were supplied by the Industry Skills Council back to the department as being the product of their work. Is that correct?

THE WITNESS: I seem to recall the CPSIC providing some material back to us. I’m not sure if it was this specific document or not.

MR KEIM: You see, at paragraph 26 of you say, “At annexure F,” and you refer to the various reference numbers.

At annexure F to this statement are true copies of material produced by CPSISC.

THE WITNESS: Yes.

MR KEIM: So I presume from that that this material is material that was supplied by the Industry Skills Council. Is that right?


MR KEIM: Your statement seems to say it, that’s all. That’s why I thought it might be true.

THE WITNESS: To – to be certain, I – I would need to see the email that had the documents attached to it because there aren’t any titles on this, but there’s – it’s possible that this could have been provided back to us.

MR KEIM: Yes. My question really was that when the Industry Skills Council produced its course materials, whatever document they’re in, whether they’re


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annexed to your statement or not, when the Industry Skills Council produced those course materials, did you or anyone else from the department go through them and say, “Well, does this address the matters that have been raised with us by industry”? Do you know if there was any process like that by which the department, having commissioned material as the client, then checked the material to make sure that it dealt with the issues that needed to be addressed? Do you know whether that happened?

THE WITNESS: I don’t know whether that happened.

MR KEIM: And you don’t recall doing it yourself.

THE WITNESS: No.

MR KEIM: Okay. And we can even say you definitely didn’t do it yourself; is that correct?

THE WITNESS: I don’t know for sure that I didn’t do it.

MR KEIM: Okay. Can the witness see a letter dated – sorry, carrying the Ringtail number AGS.002.023.3168. It should be a letter from EE-Oz. Can you scroll all the way down please. 3186, I’m told. Excuse me. I’m sorry for this, Commissioner. Could I just have a look at that again, please. Just take it down a little bit. Little bit more. Do you see those matters that are raised there? Those matters of concern with regard to applying insulation to older houses?

THE WITNESS: Yes.

MR KEIM: That was not a letter addressed to you. That was addressed to the Department of Employment and my – you can see the date there as – the date is 27 February 2009. So it’s in that fairly early period. Do you recall whether Ms McEwan or anybody from the Department of Employment ever made that email or the contents of that email known to you or any - - -

THE WITNESS: No.

MR KEIM: Sorry?


MR KEIM: You don’t know one way or another?

THE WITNESS: No.

MR KEIM: Sorry for that, Commissioner. That’s all I have. Thank you.

COMMISSIONER: Thank you.


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MR KEIM: Thank you, Mr Kimber.

<EXAMINATION BY MR BRADLEY [4.12 pm]

MR BRADLEY: Mr Kimber, can I ask you a few more general questions at the beginning. When did your involvement with the Home Insulation Program cease?

THE WITNESS: When I went on leave on the – in around May of 2010.

MR BRADLEY: About May 2010. And are you still with the Department of Environment?

THE WITNESS: I am now, yes.

MR BRADLEY: And how long were you on leave?

THE WITNESS: Approximately just under two years.

MR BRADLEY: And in that time did you pursue other activities?


MR BRADLEY: So you occupied yourself in some other way.

THE WITNESS: That’s right. MR BRADLEY: You didn’t provide a statement to the Coronial Inquiry that there was here in Queensland into three of the deaths.

THE WITNESS: No.

MR BRADLEY: And you weren’t asked to provide a statement to a senate inquiry or any of the other inquiries that have taken place?

THE WITNESS: I recall a – the ANAO inquiry. MR BRADLEY: That’s the audio office.

THE WITNESS: The audio office which was under way before I left. And I also recall the senate inquiry that occurred towards the end of 2009, early 2010. MR BRADLEY: But did you give evidence at the senate inquiry?

THE WITNESS: I contributed – I was involved in - - -

10.4.14 P-2706 W. KIMBER XN©Commonwealth of Australia MR BRADLEY

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MR O'DONOVAN: Sorry. I might – sorry, if I can just interrupt the witness there. Sorry to my learned friend. It’s perhaps a matter which I should have raised earlier. Mr Kimber annexes to his statement the – I think it’s the Departmental submission to the senate inquiry and that’s the matter that was prepared for the purposes of proceeding in Parliament, so the subject of parliamentary privilege. It doesn’t mean people can’t read it but they can’t invite any inferences effectively in relation to it. So I just wanted to - - -

COMMISSIONER: It’s a funny situation, isn’t it? Among other things, these statements all went through your office before coming back to Mr Wilson’s office.

MR O'DONOVAN: Yes.

MR BRADLEY: Commissioner, it’s my understanding the annexure is actually a draft. It doesn’t appear to be the actual submission to the parliamentary committee. It’s full of track changes and comments to be inserted and - - -

COMMISSIONER: Well, even if it’s a draft, it’s probably covered by the same privilege.

MR BRADLEY: It may well be and I don’t propose to ask any questions about it.

COMMISSIONER: No. Yes.

MR O'DONOVAN: So I was just giving that advice so – just to alert everyone to that fact so that later on in proceedings, they don’t seek to invite any inferences from it.


MR BRADLEY: Mr Kimber, really the point of my questions is really to ask you this. These events that occurred in 2009 and in early 2010 are not events that you were asked to provide any kind of detailed evidence about for some time. You’re coming back to these events after some time away from it.


MR BRADLEY: Now, more recently, you were approached about assisting the Commission by providing a statement; is that correct?

THE WITNESS: Yes.

MR BRADLEY: When did that happen? Roughly.

THE WITNESS: Around six or eight weeks ago.


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MR BRADLEY: And was that really the first time since the time of these events when you were asked to recall these particular matters?

THE WITNESS: Yes.

MR BRADLEY: Now, I understood from something that you said in your evidence earlier today that you don’t have access to the emails, notes or documents from that time.

THE WITNESS: Correct. MR BRADLEY: And you have annexed some documents to your statement. Did you have those with you at all times or have they been provided to you for the purposes of the statement?

THE WITNESS: Provided.

MR BRADLEY: And when did you receive those documents roughly?

THE WITNESS: At the time that I was asked to participate in this inquiry.

MR BRADLEY: Now, you’ve been asked a number of questions about matters in your statement, and your question is 65 or 66 paragraphs long. Can I ask you this, did you prepare that statement yourself?

THE WITNESS: The process was that the Commission invited me to a voluntary interview and that they would – or that Mallesons would draft the statement, provide it to me, I would check it and then that would form the basis of the final statement.

MR BRADLEY: All right. And without wanting to go into any detail about that, did the statement come to you roughly in the form that it’s now in?

THE WITNESS: In terms of the format and the paragraph numbering, yes.

MR BRADLEY: Now, you may have made changes to that but did you make major changes to it?

THE WITNESS: Well, I don’t know what you mean by major changes but I did make changes.

MR BRADLEY: Would the changes that you make have affected 10 per cent of the statement?

THE WITNESS: I – I don’t know. I would need to go back and look.


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MR BRADLEY: All right. Could I then ask you about two specific matters in the statement. Firstly, about the guidelines. You attached copies of the guidelines to your statement. You know what I’m speaking about when I refer to the guidelines?


MR BRADLEY: It’s the first attachment to your statement so it’s attachment A. And in your statement you say that your responsibilities in the HIP team included developing or designing the program guidelines.

THE WITNESS: Yes.

MR BRADLEY: And then you attached these copies. And we can see there the first one, I think, is called version 2.

THE WITNESS: Yes.

MR BRADLEY: And I think it goes through, there’s version 3, 4 and 5.

THE WITNESS: Yes.

MR BRADLEY: Now, they’re all guidelines for what’s called phase 2 of the program, aren’t they? They’re not for the early installation part of the program. They’re for post-1 July.

THE WITNESS: Well, each of the documents has a date of issue - - -

MR BRADLEY: Yes.

THE WITNESS: - - - on the second page so you can see where – which period they pertain to.

MR BRADLEY: You can see that but they’re all about the phase 2 of the program, aren’t they? They’re not about phase 1.

THE WITNESS: Well, that’s what the document on the back says.

MR BRADLEY: Could I ask you to have a look at just some parts of these. If we start with the first one, version 2. You can see on the first page – and for those – have we got the document there? Yes. On the very first page there’s a statement in bold across the middle of the text:

This booklet provides guidelines for installation between 1 July 2009 and 31 December 2011.

It’s the very first page - - -


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THE WITNESS: Yes.

MR BRADLEY: - - - of the document, at the beginning of annexure A. So page 1. And scroll down. Scroll down. See the words in bold.

MR O’DONOVAN: I’m not sure that annexure A is what is being presented on the screen.

MR BRADLEY: No. I’m not sure whether it is either.

MR O’DONOVAN: My number for annexure A is AGS.002.008.0887.

MR BRADLEY: You’ve got a hard copy before you, Mr Kimber?

THE WITNESS: I do.

MR BRADLEY: So we can see from that that this is about phase 2 of the program.

THE WITNESS: Yes.

MR BRADLEY: Because phase 1 finishes before 1 July.


MR BRADLEY: And so if you just scroll down. See the words in bold on the screen there? You’ve got the hard copy in front of you. And then if we go to the second page of the document under the program guideline updates, we can see that this is issued on 1 June 2009. Can I ask you to – if you would just go through the document. You will see there’s a section Home – there’s a general overview section, number 1. It’s on page 4 of 8, if you’re looking at the bottom of the page. I think it’s page 3 of the screen copy, yes. Then there’s the section “For the householder”. And then if we go over, there’s a section 3, “For the installer”. We might just note in that section “For the installer”, just before the heading, “Completion of the work and work order form” you will see there’s a note in italics.

THE WITNESS: Yes.

MR BRADLEY: Can you see that note?

THE WITNESS: I can see it.

MR BRADLEY: Do you recall that part of the guidelines?

THE WITNESS: What do you mean by that?

MR BRADLEY: Well, do you recall that when you did the guidelines, that note was inserted that:


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The installer must comply with all relevant laws in installing ceiling insulation including any licensing requirements.

Does that ring a bell?

THE WITNESS: I mean, I can see it right there, yes.

MR BRADLEY: Yes. And then if we go over the page, there’s a section 4 headed “Installation eligibility requirements”.

THE WITNESS: Yes.

MR BRADLEY: You see that? Could you just familiarise yourself with that section. It’s got some technical references in it about R values.

THE WITNESS: Yes.

MR BRADLEY: And there’s a table across the bottom.

THE WITNESS: Yes.

MR BRADLEY: And there’s even some footnotes, I think, that help explain some of that technical information. And if we go over the page, then, it has a section 5, “Further information” which seems to be definitions. And then on the last page there’s a set of important notices. And these are – this is the version of the guidelines for when phase 2 of the program began.

THE WITNESS: That’s what it says, yes.

MR BRADLEY: Now, the next document in your annexure A, which is AGS.002.007.0399, is program guidelines version 3. I think the one we just saw was version 2. This is in a slightly different format. It’s got a bit more colour and life to it. If we go to the second page, we can see it was issued on 1 September 2009.

THE WITNESS: Yes.

MR BRADLEY: Do you recall that was a date of some significance because the homeowner’s insulation program and the other program – whose name I can never remember – the LEAPR program, the low income renting program, were merged about that time?

THE WITNESS: I don’t recall but it may have happened then.

MR BRADLEY: Do you remember when the program began, there were two elements, one for homeowners - - -

THE WITNESS: Yes.


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MR BRADLEY: - - - and one for renters or landlords?

THE WITNESS: Yes.

MR BRADLEY: And that, as the program went on, the two elements were combined?

THE WITNESS: I don’t remember the details of exactly what happened to them.

MR BRADLEY: If you – if we just scroll through this we will see – the text seems to be relatively similar. Section 1 is an overview. I think you would have to scroll along past the contents. Section 1 is an overview. Section 2 is for the householder. Section 3 if for the installer and we will see it has still got that note that was in the earlier version under the heading “Installer provider register”. At the foot of that section there’s a note in italics:

The installer must comply with all relevant laws when installing.

THE WITNESS: Yes.

MR BRADLEY: It’s the same note.

THE WITNESS: Yes.

MR BRADLEY: Then the next section is the installation eligibility requirements, section 4. Could you have a look at that and tell me whether you – whether you think there’s anything remarkably different in that? It seems to me – I’ve read it. It seems to be the same as the text of version 2.

THE WITNESS: I don’t know. I would have to do a comparison. I can’t tell you.

MR BRADLEY: Well, without doing a word-by-word comparison, I will just ask you to read it to familiarise yourself with it. Have you done that? It has got – again, it has got some technical information in it - - -


MR BRADLEY: - - - and technical references and it has a table about R values.

THE WITNESS: Yes.

MR BRADLEY: And then there’s a section 5 that seems to be new, “Types and reasonable cost of insulation”. We didn’t see that in version 2. And it’s got a pricing table and the last item in the pricing table is to do with foil. Then there’s a section – if we go over the page, there’s a section 6, “Compliance”. Now, that didn’t seem to be in the earlier version either but it sets out there a compliance and audit strategy or says that there’s a compliance and audit strategy in place. You can see that?


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THE WITNESS: I can see that, yes.

MR BRADLEY: Then there’s a section “Further information”. This now looks similar to what we saw in the version 2. It’s got some definitions and it’s got a section called “Important notices”. And then it has got a – on the important notices page, it has got a block in greyed out – sort of a greyed out rectangle on the right-hand column that starts with the words “applying for assistance”. Can you see that?

THE WITNESS: Yes.

MR BRADLEY: I think those words were in the early version as well but they just weren’t in that format. And then on the last page, I think there is a photograph. Did you have anything to do with the sort of stylistic presentation of the guidelines?

THE WITNESS: No, I didn’t.

MR BRADLEY: So your involvement was really with the text. Is that right?

THE WITNESS: Yes. [4.30 pm]

MR BRADLEY: Because I think on that last page it seems to be a photograph of somebody rolling out sheets of foil insulation over ceiling joists. There are further versions in – that you’ve attached version 4 and version 5 but what I want to – the reason I take you to those is to – is really to ask you this. In paragraph 52 of your statement – and I think my learned friend, Mr Keim, asked you some questions about this – you can see there – have you got that – the statement in the first sentence?

Requirements designed to address issues of electrical safety were included in the program guidelines, such as under the installation eligibility requirements.

THE WITNESS: Yes.

MR BRADLEY: Was it your idea to include that sentence in the statement or did that just come to you the way the statement was prepared?

THE WITNESS: Well, the statement was prepared in response to questions that were put to my by counsel assisting at the interview.

MR BRADLEY: But was it your idea to include that statement? That sentence in your statement?

THE WITNESS: I don’t know what you mean by “my idea” but the – what I was doing in the statement was responding to questions from the counsel assisting.

MR BRADLEY: So when the statement came to you, you didn’t say, “No, I want to put this sentence in”? It was already there. Is that right?


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THE WITNESS: I don’t recall if that sentence was there or not.

MR BRADLEY: Do you recall whether you said, “No, I want to add a sentence that says, ‘Requirements designed to address issues for electrical safety were included in the program guidelines’”?

THE WITNESS: I would need to go back and look at the statement they sent me and my statement to be able to determine that.

MR BRADLEY: And when you accepted this statement, did you have a look at the program guidelines to see whether there was anything about electrical safety under the installation eligibility requirements?

THE WITNESS: I didn’t familiarise myself with the various versions of the guidelines, no. But I was – I did remember from my work on the program that issues of safety were – were relevant to things like the Australian standards and that those things were referred to in the guidelines.

MR BRADLEY: But you didn’t ask to change the statement so instead of saying “issues of electrical safety”, it said “issues of Australian standards”?

THE WITNESS: I – I would need to go back and look at what Mallesons wrote versus what I changed it to.

COMMISSIONER: Mr Bradley, I propose to keep sitting till 5 o’clock.

MR BRADLEY: Thank you, Commissioner. Now, turning to another topic, you gave some evidence when you were asked questions as ..... to in your statement about the question of meetings with state and territory offices to do with workplace health and safety. Do you remember those questions?

THE WITNESS: Yes.

MR BRADLEY: And my understanding of your evidence is that you said that if those meetings occurred, they would have been minuted.

THE WITNESS: Yes.

MR BRADLEY: And there would be emails inviting people to the meetings or saying something about the meetings?


MR BRADLEY: But that in the absence of documents, you don’t – you have no recollection of any specific interaction with the state or territory officer outside of meetings?


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THE WITNESS: I – I have recollection of interactions with them, but I can’t be precise about who I spoke to when and what the content was.

MR BRADLEY: Right. And if you had a discussion with a state or territory officer about the HIP, was it your practice that you would record it in some way? That was your evidence?

THE WITNESS: It depends on the nature of the discussion. If – if there was significant information, then my practice – our practice, the culture in the organisation was that it would be recorded and passed on.

MR BRADLEY: So if it was an interaction that wasn’t significant, it might not have been recorded?

THE WITNESS: I don’t know. I can’t answer that.

MR BRADLEY: If you have a look at paragraph 65 of your statement, do you remember whether that paragraph was in the statement when it came to you to sign or whether you asked to put that paragraph in?

THE WITNESS: No. I think it’s safe to say that I can’t tell you with any precision what was in the statement that was provided to me versus what I provided back as the final unless I’m given an opportunity to compare the two.

MR BRADLEY: How long ago did you receive the statement?

THE WITNESS: I can’t recall. I would need to go and look at the dates.

MR BRADLEY: You signed it on 4 April.

THE WITNESS: Yes.

MR BRADLEY: Did you receive it a long time before you signed it?

THE WITNESS: I worked on it for around about a week or 10 days.

MR BRADLEY: So somewhere up to 10 days before the 4th, you received it?

THE WITNESS: Yes. Yes. That’s right.

MR BRADLEY: But you don’t remember whether you changed that paragraph?

THE WITNESS: I remember changing a – a lot of things in the statement and I can’t be precise about which parts I changed without referring to the documents.


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MR BRADLEY: Now, on the final topic, in answers to earlier questions, you indicated that you had an understanding of workplace health and safety regulation during the time that you were involved in the HIP?

THE WITNESS: Yes.

MR BRADLEY: And that your understanding was that workplace health and safety laws imposed obligations on employers and – at least on employers.

THE WITNESS: Yes.

MR BRADLEY: And perhaps on other people in control of workplaces?


MR BRADLEY: If other officers within the HIP team had a different view to that, were you aware of it?

THE WITNESS: A different view to what?

MR BRADLEY: A different view to that view that workplace health and safety laws imposed an obligation on employers and perhaps on other people in control of workplaces?

THE WITNESS: I don’t recall people expressing any view about that, only that we were aware that these obligations existed.

MR BRADLEY: Now, you might not have known of the precise name of a state or territory Act or regulation and you might not have known the exact section of an Act or regulation, but you had a general understanding of those laws and regulations?

THE WITNESS: No. I had a general understanding that they existed.

MR BRADLEY: And do you recall discussions amongst the HIP team about what the effect of those laws was? How they operated?

THE WITNESS: No.

MR BRADLEY: But if anybody had a question about that, it wasn’t you? You had a reasonably – you’re happy with the understanding that you’ve got with the way these laws work?

THE WITNESS: Well, I didn’t have a good understanding of the way those laws worked because I wasn’t – I’m not an occupational health and safety expert, nor am I a state and territory official, and nor do I work with those pieces of legislation.


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MR BRADLEY: All right. But at the time that you were working on the program, your understanding, such as it was, of those types of laws, was that they imposed an obligation on the employer.

THE WITNESS: Yes.

MR BRADLEY: And perhaps on other people in control of workplaces.

THE WITNESS: Yes.

MR BRADLEY: Those are my questions, Commissioner.

COMMISSIONER: Thank you. Mister – sorry. Mr Barrow.

<EXAMINATION BY MR BARROW [4.38 pm]

MR BARROW: Thank you, Commissioner. Could I ask that AGS.002.029.0929 be up on the screen, please. This is just that email you’ve been taken to a few times from 3 April. I just wanted to take you down just a little bit further on the document. Keep going. To the key actions. Just a little bit further. Just there. I wanted to ask you firstly that one of the people at this – or was party to this discussion was Mr Ash, Brian Ash.

THE WITNESS: Yes. MR BARROW: Do you remember him?

THE WITNESS: Yes.

MR BARROW: One of the key actions is said to be to conduct a risk assessment specifically for the process of installing ceiling insulation, Brian Ash to provide organisational contact for who can do this for us. Do you remember that part of the exchange with him on that occasion?

THE WITNESS: I don’t recall the specifics of the exchange, no.

MR BARROW: A risk assessment for the specific task of actually installing the insulation seemed to me perhaps to encompass or to anticipate some expert advice received about the global risks that actually – installers would actually face in roof spaces. Is that your recollection of what was being discussed?

THE WITNESS: I don’t have specific recollection. I can only go off my minutes or records at the time indicate.

10.4.14 P-2717 W. KIMBER XN©Commonwealth of Australia MR BARROW

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MR BARROW: Do you remember whether Mr Ash provided any information about who might be able to provide such a risk assessment?

THE WITNESS: No, but if he did, there would be records of it.

MR BARROW: I think you’ve been asked about your contact with Ms Coaldrake.

THE WITNESS: Yes.

MR BARROW: Do you remember whether you ever discussed with her Mr Ash’s offer to provide this type of information?

THE WITNESS: I do not remember discussing that with her but I may have.

MR BARROW: And you say if you did, there may well be records.


MR BARROW: Okay. The only other matter I wanted to ask you about was, and again, if I could just have this document, it’s AGS.002.023.3151, and this is your email relating to the training meeting on 8 May, that again you’ve seen repeatedly, I think. You’re – as I understand the evidence, you were both involved in this training workshop on 8 May and you were also on the minutes at least or the meeting of the project control group on 8 May.


MR BARROW: Did you attend the project control meeting on top of this training group meeting?

THE WITNESS: I can’t recall but if I did, I must have been busy that day.

MR BARROW: Yes. Ms McEwan has provided a statement. She says that she was at both and she said she went to and for. Do you have any recollection of doing the same thing?

THE WITNESS: I don’t, no.

MR BARROW: Was it the case that your primary occupation that day was the training group meeting?

THE WITNESS: I can’t recall what my primary occupation is. I can only go off what the minutes were at the time. It looks like I did send this email which seems to indicate that I was at the training meeting.

MR BARROW: Yes. If I could just take you down to – if you could just scroll down a little. Keep going. Little bit further, please. It’s just there. See where


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you’ve got the bullet point Recommended Changes, and the points 2 and 3 and so on, this seems to be part of an email you sent at 24 minutes past 4. I just wondered whether by then you had become aware of what the project control group had decided, that was that thereafter, the competencies didn’t require all workers in roof spaces to have training. Do you know when you first became aware that that was a decision the project control group had made?

THE WITNESS: I don’t know when I first became aware of that.

MR BARROW: Do you know – I withdraw that. Ms McEwan, as I read her statement, says that there had been discussion in the days leading up to 8 May amongst members of the Department, your Department, about an amendment to the competencies similar to what eventuated on 8 May. Do you have any recollection of engaging in any discussion about dropping the requirement for everyone involved in installation of insulation to have the competencies?

THE WITNESS: I don’t recall that, no.

MR BARROW: Do you know whether the training group were ever informed of the proposed change?

THE WITNESS: No, but if they were then there would be records. There would be minutes where, you know, the policy or the guidelines would have moved on and that would have been made clear in the records at the time.

MR BARROW: It seems – perhaps it’s just an observation from me but you might be able to agree with it, your subsequent email where you added some things about what various people at the training group thought about training particularly suggests that certainly on that day they weren’t aware of what the project control group had decided.

THE WITNESS: Well, from the documents you’ve presented me, it looks like those meetings were quite close together so there may have been a clash between them. I’m not sure.

MR BARROW: There has been some evidence about a memorandum of understanding that the Department had entered into with regard to fair trading. Are you aware of whether there were any attempts or thought given to memorandums of understanding with regard to either training or workplace safety?

THE WITNESS: I seem to recall another document that referred to memorandum of understanding and if they – if that did exist then it would have been documented.

MR BARROW: Right. I think the Commission has seen – or there’s evidence about one that related to fair trading with the states in terms of consumer complaints about faulty installation, etcetera.


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THE WITNESS: Yes.

MR BARROW: Are you aware of any other attempt to have a memorandum of understanding with regard to training or workplace safety?

THE WITNESS: I recall that the level of engagement with the occupational health and safety organisations in the states was below what we had hoped for.

MR BARROW: That was evidence you’ve given before - - -

THE WITNESS: Yes.

MR BARROW: - - - during today.

THE WITNESS: Yes.

MR BARROW: And that’s as much as you can say.

THE WITNESS: Yes.

MR BARROW: Yes. Thank you. Thank you.

COMMISSIONER: Yes, Mr Potts.

<EXAMINATION BY MR POTTS [4.46 pm]

MR POTTS: Thank you, Mr Commissioner. Just following up a question from Mr Bradley, you made some changes, I understand, to the statement which was originally provided to you.

THE WITNESS: Yes.

MR POTTS: Do you still have that statement to which you made the changes?

THE WITNESS: I don’t have it with me but - - -

MR POTTS: Do you have it at home or somewhere?

THE WITNESS: I have it at home, yes.

MR POTTS: Would you have any objections to providing the Commission with that so that we can, as you’ve asked, compare it to your final statement?

10.4.14 P-2720 W. KIMBER XN©Commonwealth of Australia MR POTTS

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THE WITNESS: I wouldn’t be comfortable with that because the process that I understand was undertaken was that the draft would not be provided because the draft had errors and inaccuracies in it.

MR POTTS: Well - - -

MR O'DONOVAN: Sorry. Just at that point, I should also mention that there was an agreement between the Commission and, I suppose, the Commonwealth and the basis on which it was made available is that it was the final version that would be summonsed and made available and that the other earlier versions would not be available outside of the Commission.

COMMISSIONER: I think the interviews were conducted on a confidential basis. Is that right, Ms Wilson?

MR O'DONOVAN: And there wasn’t - - -

MR WILSON: The short answer to Mr Potts’ question is we have a copy of the draft.

MR POTTS: Thank you. There’s reference and various statements to an agreement which, of course, I have not seen so I’m happy with my learned friend’s indication and I will leave that topic. Mr Kimber, it may be just an oversight but unlike some of the other statements we received, it doesn’t set out your qualifications. What are they?

THE WITNESS: What do you mean by that?

MR POTTS: Do you have any tertiary qualifications?

THE WITNESS: Yes.

MR POTTS: What are they?

THE WITNESS: I have a Bachelor of Science degree with honours and a masters, and also a commission in the Australian army.

MR POTTS: Right. Just dealing with those then, the second thing that your statement commences at paragraph 3 when you talk about commencing your employment with Department of Environment, Water, Heritage and Arts, how long have you actually been in the public service?

THE WITNESS: I commenced in 2003.

MR POTTS: And apart from the two year break that you’ve had recently, and I don’t need to go into that, you’ve been employed constantly in the public service for that period of time?


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THE WITNESS: All Commonwealth agencies, yes.

MR POTTS: All right, then. Dealing, then, with your position, you were appointed – it seems – as a policy officer with respect to the HIP team. Is that correct?

THE WITNESS: Yes.

MR POTTS: So your experience and your appointment is no doubt in policy development - - -

THE WITNESS: Yes.

MR POTTS: - - - over a 10 year period.

THE WITNESS: Policy and program, yes.

MR POTTS: You’ve been asked a number of questions and you’ve provided a statement. I don’t want to go down to the detail but I just want to remind you of some of the matters. Can we go to paragraph 30 of your statement, and you will see that there were various risks and considerations which came up for discussions. Are you familiar with that?

THE WITNESS: Yes.

MR POTTS: All right. So you understood that there were some risks associated with the program and various issues of timings and the like.

THE WITNESS: Yes.

MR POTTS: Going across to paragraph 31, you talk about the pace of implementation making it more challenging for your team. At 32, you talk about - - -

COMMISSIONER: What’s the question?

MR POTTS: I’m going to go to the question - - -

COMMISSIONER: I can read these.

MR POTTS: If I can just set up the final question. I will go to it very quickly. Paragraph 32, you then talk about the finding of the capacity with the insulation industry to be uneven.

THE WITNESS: Yes.

MR POTTS: And you’ve been asked numerous questions about various things. Going to page 9 of your statement, “Comments on terms of reference, G” you said


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then in relation to whether the Australian government should change its laws, policies, practices or processes, you had no comments at that stage. Is that still your position, that you’ve got no view that you can share with this Commission as to what essentially led to the number of fires and the deaths that have occurred? You have no insight or nothing you can share with us?

THE WITNESS: My feeling is that the program experienced a number of failures in process and – and it made it very difficulty for people working on that program, and I would like to see changes that would prevent them in future.

MR POTTS: Okay. I appreciate this might be difficult for you but can you share with us those difficulties in the process. Where do you think it went wrong?

THE WITNESS: I think my evidence sets out my views about where it went wrong and I’m happy to let my existing evidence rest.

MR POTTS: I’ve no further questions.

COMMISSIONER: Yes, Mr O’Donovan.

<EXAMINATION BY MR O'DONOVAN [4.51 pm]

MR O'DONOVAN: I appear for the Commonwealth and I really only have one question for you, and it’s really by way of summary of your evidence – or at least a proposition I want to put to you and see if you agree with it, and that is that the most reliable way of understanding what you were doing in relation to the program and what you knew in relation to the program and what you were told in relation to the program from your perspective, five years on, is for us to go back to the Commonwealth records.

THE WITNESS: Yes.

MR O'DONOVAN: You would agree with that. And to the extent that some things in your statement you might have said – and I’m not suggesting that there is anything in your statement – but if we find Commonwealth records that are inconsistent with what you’ve said today or what you’ve said in your statement that, to the extent we have to make a choice, that you would say - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - it’s more reliable - - -

THE WITNESS: You would go with the records.

MR O'DONOVAN: - - - to go with the records.

10.4.14 P-2723 W. KIMBER XN©Commonwealth of Australia MR O'DONOVAN

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MR O'DONOVAN: Very good. All right. Those are my only questions.

COMMISSIONER: Yes, Mr Spry.

COMMISSIONER: Yes, Mr Spry.

<EXAMINATION BY MR SPRY [4.52 pm]

MR SPRY: Yes, I do have some questions. Thank you, Commissioner. Mr Kimber, you were asked a range of questions about – and you gave a number of answers about the difficulties and how serious you took for risks that were emerging.

THE WITNESS: Yes.

MR SPRY: And you said that you reported those concerns up the chain of command.

THE WITNESS: Yes.

MR SPRY: And, again, who did you report those to?

THE WITNESS: To the people who were working above me at the time.

MR SPRY: And who were they? So who were they initially?

THE WITNESS: The people who worked in the HIP team and then - - -

MR SPRY: Well, in the HIP team, initially you were an assistant director, an EL1?

THE WITNESS: Yes, yes.

MR SPRY: And so when you reported up the chain of command, the next person in line would be the director, an EL2?

THE WITNESS: Yes.

MR SPRY: And did you report your concerns to that director?

THE WITNESS: Yes.

MR SPRY: And who was that?

10.4.14 P-2724 W. KIMBER XN©Commonwealth of Australia MR SPRY

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THE WITNESS: Beth Riordan.

MR SPRY: And did you go further up the chain of command?

THE WITNESS: Yes, to Kevin Keefe and Aaron Hughes and my work ultimately found its way to the project control group and to the minister as well.

MR SPRY: Now, you also gave some evidence in response to some questions that those that you reported this to in the chain of command, that is, your director and Mr Keefe, took – also had concerns, took what you were saying seriously and also had concerns.

THE WITNESS: Yes, they did.

MR SPRY: How did you form that view that they also had concerns and were taking your concerns seriously?

THE WITNESS: Because of the level of – of effort and commitment that was displayed to – to better understand the – the issues and develop ways that those issues could be addressed within the limits of what the government was requiring and it was a very difficult thing for people working in the department to do because of the limited time and the business model that was chosen and the government’s priority for rapid implementation.

MR SPRY: And was this something that you were told? Were they telling you this, were they? Were these the things that they were saying to you?

THE WITNESS: Yes.

MR SPRY: Outside the chain of command, was there anyone else that you could have spoken to about your concerns?

THE WITNESS: I – I don’t believe so. No.

MR SPRY: Now, you were also asked some questions just recently about your draft statement and how long you had that for. You said you had it for around 10 days.

THE WITNESS: Yes.

MR SPRY: Were you working on it all that time? That is, your final statement from when you received the draft?

THE WITNESS: Yes, I was, in and amongst other work.

MR SPRY: And so out of that 10 days, how much time did you think you attributed to the preparation of this statement, the final statement?


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THE WITNESS: Possibly three days.

MR SPRY: Now, you say in your statement and also in response to some questions particularly from Bradley that you ceased in the program when you went on leave in May 2010.

THE WITNESS: Yes.

MR SPRY: So were you working in the HIP program first as an EL1 as an assistant director, and an EL2 as an acting director for a period for two months or so.

THE WITNESS: Yes.

MR SPRY: And then did you go back to being an EL1, did you?


MR SPRY: And do you work within the HIP team for all that period of time until you went on leave in May 2010?

THE WITNESS: That’s correct, yes.

MR SPRY: And you did no other work?

THE WITNESS: Well, there were other things that happened during that year and a half, but my primary duties were on the Home Insulation Program.

MR SPRY: And at all times, were you within the context of the department – within the department?

THE WITNESS: Yes, I was.

MR SPRY: Now, some questions were put to you about some comments made by – at a meeting on 8 May 2009 and comments made by Mr Hannam. Do you recall those questions being put to you?

THE WITNESS: Yes. MR SPRY: And also Mr Herbert was present at that meeting on 8 May. Now, do you have any recollection of that meeting?

THE WITNESS: I don’t have specific recollection of the meeting.

MR SPRY: Now, some questions were put to you about comments Mr Hannam made and comments that were attributed to you and recall denying those comments?

THE WITNESS: Yes.


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MR SPRY: Now, following that meeting, did you have any further contact with Mr Herbert and did he raise with you the contents of that meeting in any way?

THE WITNESS: I received an email, I believe, from Mr Herbert on Monday, 11 May that said that Mr Herbert said in that email that Friday’s meeting was a very positive events from ACIMAs viewpoint.

MR SPRY: Now, you’re obviously reading that out, are you? You’ve got something in front of you.

THE WITNESS: Yes, I am. MR SPRY: So you’ve got an email from Mr Herbert to you, have you?

THE WITNESS: Yes.

MR SPRY: Commissioner, I’m not so sure if this email is – it’s fully before the Commission at this stage. It has got a Commonwealth reference number which is 001.0735.0001 and there’s an attachment to it which has also got a Commonwealth reference CTH.001.0735.005. I could provide those if they can be scanned.

[5.00 pm]COMMISSIONER: You’re able to find those?

MR WILSON: Commissioner, I’m instructed that they were produced yesterday to the Commission.

MR SPRY: Is that the email that you were referring to?

THE WITNESS: Yes.

MR SPRY: And if we could just scroll down that email chain. If we could go to the bottom of it. Yes, and if you could – sorry, if you could just go up to the email starting on 5 May 2009. It should be page 3 of the email chain. Yes, that’s it there. Thank you. Now, could I ask you to read that email from Mr Herbert to Mr D’Arcy, which has been forward to you as part of the email chain.

THE WITNESS: Yes.

MR SPRY: Now, when you read that email, does that help you recollect what Mr Herbert’s views may have been and the views that he expressed at the meeting on 8 May?

THE WITNESS: I don’t recall exactly what Mr Herbert expressed on 8 May but I recall his involvement and advocacy in the program was around ensuring that his interests and the interests of the cellulose insulation industry that he represented were looked after in the program.


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MR SPRY: Was he suggesting that the program should be slowed in any way?

THE WITNESS: I don’t recall that, no. MR SPRY: You also, in answers to some of your questions, you gave some evidence about the change in business model and you had concerns about that.

THE WITNESS: Yes.

MR SPRY: What was the change in business model that you were referring to?

THE WITNESS: Well, broadly speaking there was an original concept that the program would be implemented through a regional rollout including using a procurement process where that would give you greater control over the tendering and the selection of the individuals or the entities that would be doing the work. And that would be done over a period of time that would allow the Department of have more control over issues of demand and implementation. And that model was ultimately not chosen and the government instead decided to go with the Medicare model which was fundamentally different and allowed a much – allowed direct payments to installers and in my view, that meant that there was a greater speed of delivery but a lower level of control over the program.

MR SPRY: Did you raise any concerns about that in your chain of command?

THE WITNESS: I remember discussing it, yes.

MR SPRY: And again, what was the response when you – from those superior to you when you raised those concerns?

THE WITNESS: They were equally concerned. My superiors were concerned about that issue and they were concerned that – in particular, Mr Keefe was concerned that the government was going down this path when there were these risks that were inherent in the program.

MR SPRY: You say he said he was concerned. Did you form the view that he felt in some way hamstrung, there was not much he could do?

THE WITNESS: I – I sensed that the Department was not the only decision maker in – in the policy development process and that others were also involved, and I felt that Mr Keefe was in a difficult position.

MR SPRY: Thank you, Mr Kimber. Yes. No further questions, Commissioner.

COMMISSIONER: Thanks, Mr Spry.

<EXAMINATION BY MR WILSON [5.05 pm]


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MR WILSON: Thank you, Commissioner. Three matters only, Mr Kimber. Could I bring up AGS.002.014.118 please. And while that is coming up, did you know a lady by the name of Samantha Kortt?

THE WITNESS: Yes.

MR WILSON: K-o-r-t-t.

THE WITNESS: Yes.

MR WILSON: Did she work in the HIP team?

THE WITNESS: For a time, yes.

MR WILSON: Do you recall me asking you some questions this morning about attempting to open communication channels with the states about OH&S or workplace health and safety matters?

THE WITNESS: Yes.

MR WILSON: Just have a look at this email. It’s from Ms Kortt to a gentlemen named Campbell in Queensland. Did you know or become aware of a gentlemen named Tim Campbell?

THE WITNESS: I don’t recall him, no.

MR WILSON: You will see there – just read the paragraph to yourself – the two paragraphs. “Given the unprecedented size” and then “We would appreciate it if”.

THE WITNESS: Yes.

MR WILSON: Were you aware that those communications were taking place?

THE WITNESS: I - - -

MR WILSON: Attempting to open up the lines of communication with the state.

THE WITNESS: I recall that we were making attempts, yes.

MR WILSON: And do you recall if similar attempts were made with any state or territory other than Queensland?

THE WITNESS: I recall that we were making attempts with a variety of states and territories but I couldn’t tell you without looking at the documents which ones or when.


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MR WILSON: My second topic this. You were asked some questions by my learned friend Mr Bradley, representing the State of Queensland, about your statement and its draft. Could I give you these two questions on notice – I don’t expect you to do it from memory – to advise the Commonwealth whether paragraphs 52 and 65 of your statement – we can write to you about this, Mr Kimber - - -

THE WITNESS: Okay.

MR WILSON: Don’t worry. Whether paragraphs 52 and 65 of your statement were as per draft or whether you added them? And part (b) of that question is, if you added them – which I’m going to suggest that you did – was that in consultation with anyone other than your lawyer? Do you understand what I’m asking you?

THE WITNESS: Yes, and I can’t answer it because I need to look at the document.

MR WILSON: No. I’m giving it to you on notice.

THE WITNESS: Okay.

COMMISSIONER: In fact – in fact, they will write to you and ask you these questions.

MR WILSON: Yes. I just wanted to forewarn you it’s coming.

THE WITNESS: Okay.

MR WILSON: The final question is this. Could we bring up QIC.006.001.2924 please. My learned friend Mr Perry asked you some questions about the installer advices. Do you remember that?

THE WITNESS: Yes.

MR WILSON: Operator, could we go to the one with page 2953 in the top corner. And if we can just scroll down to “Industry comment”. Mr Perry took you to this. You see the passage that starts, “The process of stapling”?

THE WITNESS: Yes.

MR WILSON: Read that sentence to yourself.

THE WITNESS: Yes.

MR WILSON: That’s a matter that was known to you before 19 October 2009?

THE WITNESS: I don’t know when I first became aware of that issue.


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MR WILSON: It was a matter that was known to you, I suggest, from before 1 July 2009.

THE WITNESS: Which matter specifically?

MR WILSON: The process of stapling conductive foils in ceiling spaces where cables are present is highly dangerous.

THE WITNESS: I can’t say with any precision when I first became aware of that particular issue.

MR WILSON: Read the second sentence to yourself.

THE WITNESS: Yes.

MR WILSON: I suggest to you that you were aware of that fact before 1 July 2009.

THE WITNESS: Yes. That – that issue, I think, was in the installer handbook.

MR WILSON: And it was known to you before 1 July 2009. That’s what I’m suggesting.

THE WITNESS: I can’t say with any precision when I first became aware of it.

MR WILSON: And the read the third sentence, “That this will place.” I’m suggesting to you that that was a fact that was known to you before 1 July 2009.

THE WITNESS: I mean, this is written in a – in a particular way. So all I can say is that I was aware of the potential for installer injury and these electrical safety issues are from 3 April 2009, but I can’t say with any precision exactly when I became aware of the issues that are touched on in this paragraph.

MR WILSON: Yes. I have no further questions.

COMMISSIONER: Thank you. Mr Kimber, you’re excused for the time being. We might have to have you back when the AGS has searched for the emails that you referred to this morning and has found them or just establish that they don’t exist, and then somebody will let you know if we want you back to give further evidence. But thank you for your attendance today.

THE WITNESS: Okay.

<THE WITNESS WITHDREW [5.10 pm]


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MR WILSON: 9.30?

COMMISSIONER: I will adjourn until 9.30.

MATTER ADJOURNED at 5.11 pm UNTIL FRIDAY, 11 APRIL 2014

10.4.14 P-2732 ©Commonwealth of Australia

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Index of Witness Events

WILLIAM KIMBER, ON FORMER OATH P-2576EXAMINATION BY MR WILSON P-2576EXAMINATION BY MR PERRY P-2623EXAMINATION BY MR WINDSOR P-2646EXAMINATION BY MR KEIM P-2655

THE WITNESS WITHDREW P-2659

DENNIS D'ARCY, SWORN P-2659EXAMINATION-IN-CHIEF BY MR HORTON P-2659EXAMINATION BY MR WINDSOR P-2673EXAMINATION BY MR KEIM P-2675EXAMINATION BY MR BRADLEY P-2676EXAMINATION BY MR BARROW P-2678EXAMINATION BY MR POTTS P-2680EXAMINATION BY MR O'DONOVAN P-2685EXAMINATION BY MR DE JERSEY P-2691EXAMINATION BY MR HORTON P-2692


WILLIAM KIMBER, RECALLED P-2695EXAMINATION BY MR KEIM P-2695EXAMINATION BY MR BRADLEY P-2706EXAMINATION BY MR BARROW P-2717EXAMINATION BY MR POTTS P-2720EXAMINATION BY MR O'DONOVAN P-2723EXAMINATION BY MR SPRY P-2724EXAMINATION BY MR WILSON P-2728


Index of Exhibits and MFIs

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